Sibanye Gold Protection Service v Commission for Conciliation, Mediation and Arbitration and Others (JR2476/19) [2023] ZALCJHB 258 (12 September 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2476/19

In the matter between:

SIBANYE GOLD PROTECTION SERVICES LIMITED Applicant And COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent COMMISSIONER L SHEAR Second Respondent HENNIE GROENEWALD Third Respondent

Heard: 2 August 2023

Delivered: 12 September 2023

Summary: Review application – caution that reviews should not be conflated with appeals – the legislature made a deliberate decision that arbitration awards are final and abiding – if evidence that was before the Commissioner, looked holistically, shows that the outcome is reasonable, then the award is unassailable.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] The applicant, Sibanye Stillwater Mine (Sibanye), seeks to review and set aside the arbitration award in terms of section 145 of the Labour Relations Act[1] (LRA) rendered by the second respondent, Commissioner L Shear (Commissioner), under the auspices of the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA), under case number GAJB13820-19 and dated 25 September 2019. The Commissioner found the dismissal of the third respondent, Mr Hennie Groenewald (Mr Groenewald), was unfair and ordered that he be reinstated retrospectively. Mr Groenewald is opposing the review application.

[2] There are four unopposed points in limine that I need to dispose of quickly. Firstly, the record of the review was filed outside the prescribed 60-day period in terms of clause 11.2.2 of the Practice Manual of the Labour Court[2] (Practice Manual). Secondly, Sibanye failed to comply with clause 11.2.7 of the Practice Manual as it only requested the set down date outside of the 12-month period. Thirdly, the review application was filed late by two days. Lastly, Sibanye seeks leave to amend its citation.

[3] I propose to deal with the first and second points in limine together. It is trite that a party that seeks indulgence to have a deemed withdrawn or lapsed review reinstated must show good cause. Even though a request for condonation is not opposed, it cannot be had for the mere asking; a full explanation for the non-compliance with the relevant prescripts must be tendered.[3] To determine whether good cause has been shown, one is guided by the well-known approach adopted in Melane v Santam Insurance Co Ltd,[4] and penitently, the further principle that “without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused”.[5]

[4] The explanation for non-compliance with the Practice Manual is, in my view, acceptable as the delay was caused by the incomplete record of the arbitration proceedings. The record has since been duly reconstructed and the review application is ripe for hearing as all pertinent papers are before the court. Also, the delay in requesting a set down is not fatal as there is no prejudice on the part of Mr Groenewald. Accordingly, the review application is reinstated and the late filing of the record is condoned.

[5] The third point in limine does not need much attention as the delay in delivering the review application is negligible and the explanation is reasonable. As such, condonation is granted.

[6] The last point in limine is about the correction of the citation. Sibanye contends that Mr Groenewald was employed by Sibanye Gold Protection Services Limited, a subsidiary of Sibanye Gold which is wholly owned by Sibanye Stillwater. I see no reason why, absent an objection, it should not be granted. The citation of the Sibanye is accordingly amended to ‘Sibanye Gold Protection Services Limited’.

[7] That takes me to the merits of the review application.

Background

[8] Mr Groenewald was employed by Sibanye as a Supervisor in the Protection Services Department at Driefontein Mine. On 26 November 2018, he sent a voice note to the members of his Neighbourhood Crime Watch WhatsApp Group (Neighbourhood Watch Group) in Afrikaans which was translated to English as follows:

‘Good evening to members, Hennie Groenewald, Carletonville. Fochville, - It is Monday, 26th, the time is 18:40. Just a quick report on the Mine strike here at Sibanye. I am working here at the moment and have just begun my nightshift. There are apparently many instances of intimidation and there are also striking members who have begun to close roads in certain suburbs, and there is also information received that tonight they will go to non-striking members’ homes to assault them and even kill them, and further information, that is they come to your homes and you are not at home, they can attack your family and even kill them.

This only information, it can also be intimidation tactic, but at the moment we are accepting everything as true until proved otherwise

[sic]. So, this is just information so that you can be informed.’[6]

[9] Mr Groenewald was dismissed subsequent to being found guilty of the following charge: A “[b]ehaviour prejudicial to the maintenance of good order and/or non-compliance to Protection Service Code of Conduct and/or Code of Ethics in that you revealed company information and/or statements about sensitive/ confidential strike information in public through WhatsApp media without authorisation”.[7]

[10] Unhappy with his dismissal, Mr Groenewald referred to the CCMA which was duly arbitrated following a failed conciliation. The commissioner found the dismissal of Mr Groenewald unfair for the following reasons:

10.1. The information the was published by Mr Groenewald was not Sibanye’s information. Conversely, the information published was a bona fide warning about the violence related to the AMCU strike to the members of his Neighbourhood Watch Group;

10.2. Sibanye failed to establish that Mr Groenewald was ill-motivated when he published the information; and

10.3. The information did not constitute a presentation on the affairs of Sibanye but was information concerning the status of the strike and its impact on the members of the WhatsApp group and the Neighbourhood Watch.

[11] Sibanye is challenging the award based on the following grounds:

11.1. The Commissioner failed to consider material facts. As a result, his findings are speculative as they are not supported by evidence.

11.2. The Commissioner’s finding that Mr Groenewald had received the information from his fellow WhatsApp group members is not supported by evidence. Mr Groenewald failed to present evidence to show that the information was received from the members of the public. Thus the only conclusion should have been that he had received this information in his capacity as an employee of Sibanye. Moreover, because he had identified himself as an employee of Sibanye.

11.3. The Commissioner failed to have regard to Sibanye’s Code of Ethics which prohibits employees from speaking on the affairs of the company without authorisation.

11.4. The commissioner misconstrued the nature of the enquiry and as a result, rendered an unreasonable award.

Review test

[12] The review test is trite and the parties accept that it is reasonableness. In Booi v Amathole District Municipality and others,[8] the Constitutional Court austerely warned against conflating reviews with appeals, stating that:

‘…Despite the Labour Court having paid lip service to the question of whether the order of reinstatement fell outside of a band of decisions to which a reasonable arbitrator could arrive, it appears that the Court considered itself at large to conduct the enquiry that was before the arbitrator afresh – as if it were sitting as a court on appeal. This was a fatal error – one which this Court warned against in Sidumo, when it said that reviews should not be conflated with appeals.’

[13] To underscore the above observation, the Constitutional Court, further made the following salient point, apropos:[9]

‘[50] …Labour litigation, as envisaged by the LRA, is distinct from any other civil litigation. This is made abundantly clear in the Preamble to the LRA, and through the specialised system and institutions created by that Act. It has also been affirmed by this Court recently. It follows that labour disputes must not be perceived as ordinary civil disputes by the courts that adjudicate them. Our law is clear: labour dispute resolution must be expedient, simple, accessible and cost-effective. It is with this in mind that the LRA carves out unique litigious pathways for disputes that arise pertaining to employment relationships. What the Legislature had in mind when carving out these pathways is evident from the explanatory memorandum to the Draft Labour Relations Bill, to which I once again refer:

“In order for this alternative process to be credible and legitimate and to achieve the purposes of the legislation, it must be cheap, accessible, quick and informal. These are the characteristics of arbitration, whose benefits over court adjudication have been shown in a number of international studies. The absence of an appeal from the arbitrator’s award speeds up the process and frees it from the legalism that accompanies appeal proceedings. It is tempting to provide for appeals because dismissal is a very serious matter, particularly given the lack of prospects of alternative employment in the present economic climate. However, this temptation must be resisted as appeals lead to records, lengthy proceedings, lawyers, legalism, inordinate delays and high costs. Appeals have a negative impact on reinstatement as a remedy, they undermine the basic purpose of the legislation and they make the system too expensive for individuals and small business.” (emphasis added.)

[51] It is pertinent that the Legislature deliberately provided for the mechanism of a review, as opposed to an appeal, for arbitration awards made in respect of labour disputes. As demonstrated above, the intention behind this choice was to prevent labour dispute-resolution procedures from becoming costly and time-consuming and, thereby, inadvertently favouring the party that wields greater resources and power. It was a pragmatic decision that serves the ends of justice and protects the rights enshrined in s 23 of the Constitution. Courts undermine these imperatives by readily treating reviews as appeals. Arbitration awards are intended to be final and binding. They are not to be treated as a mere box-ticking exercise, or the first step in a drawn-out process that can be exploited by the party who is able to “out-litigate” the other. It is no secret that the Labour Courts are backlogged and that this impedes their ability to adjudicate labour disputes in the swift manner contemplated by the LRA. This problem is, without a doubt, exacerbated when a court fails to distinguish between a genuine review and an appeal disguised as a review.’ [Emphasis added]

[14] In the present instance, it begs the question of whether one is dealing with a genuine review or an appeal. Sibanye’s main criticism of the Commissioner is that he did not consider and apply weight to its evidence. The fallacy with this impugn is that it is oblivious of the review test as articulated by the Labour Appeal Court (LAC) in Head of the Department Department of Education v Jonas Mohale Mofokeng and Others[10]. It was stated that:

‘Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidence in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong inquiry, undertaken the inquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.’[11]

[15] Stated otherwise, to amount to a gross irregularity as contemplated by s 145(2)(a)(ii) of the LRA and vitiate the award due to the flaws in the conduct of the proceedings, the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result.[12]

[16] Mr Groenewald was charged, inter alia, in terms of clause 5.3 of the Protection Service Code of Conduct which provides that:

‘11. Revealing or selling of the company information, trade secrets, and/or making ill-motivated statements in public or through any media, including social media platforms, short message system, and email with or without the intention to embarrass SGPS or SGL where these facts result in bringing the name of SGPS and SGL into disrepute.’[13]

[17] Mr Groenewald denied that the information he had shared with his Neighbourhood Watch Group belonged to Sibanye. Mr Botha, Sibanye’s witness, was constrained to concede that he had no proof that the information belonged to Sibanye. Conversely, the highlight of his evidence was that Mr Groenewald’s communication had a negative effect on production and tarnished Sibanye’s reputation because it was communicated at the time when they were trying to motivate people to come back to work and to prevent conflict.

[18] Thus, in my view, the Commissioner cannot be faulted for finding that:

‘27. I do not believe that the information posted was company information per se. He [Mr Groenewald] was only revealing information which he has received from his fellow WhatsApp members. Furthermore, I do not believe that the respondent [Sibanye] has established that the applicant was ill-motivated when he posted the information. There is no evidence to suggest that his intentions were anything but bona fide and that he was merely attempting to warn members of his neighbourhood watch of road closures and penitential danger.

28. The message itself stated that this is just information and might just ne intimidation tactic”. This does not imply or suggest that the information conveyed constituted hard evidence.’[14]

[19] Sibanye’s contends that the Commissioner did consider the evidence in relation to the alleged breach of its Code of Ethics which prohibits speaking, lecturing or presentation of the affairs of or matters or subject relating to Sibanye without written consent of the appropriate members of EXCO. This contention is untenable. The Commissioner conclusively found that the information did not constitute a presentation of the affairs of Sibanye as all that was presented was the information regarding the status of the strike and the effect it might have had on the members of the WhatsApp group and neighbourhood watch.

[20] Pertinently, Mr Groenewald testified that when he was sending the information, he was representing the neighbourhood watch and not Sibanye. The information was received from a public sources and some were observed by him on his way to work, particularly the blockade on the public roads. The information related to the suburbs of Carletonville and Fochville and had nothing to do with the premises of Sibanye. This evidence was not disputed.

[21] Indeed, the Commissioner did not make much of the fact that Mr Groenewald identified himself as the employee of Sibanye in the voice note as it was his undisputed evidence that it was practice to do so in their Neighbourhood Watch Group.

[22] It is also uncontested that there was a delay in instituting the disciplinary enquiry. The incident took place on 26 November 2018 but Mr Groenewald was only charged in January 2019 and dismissed in May 2019. Yet, Sibanye persists with the contention that the conduct of Mr Groenewald impacted it negatively so as to justify a sanction of dismissal. On the contrary, Mr Botha testified that he had no issues with Mr Groenewald and that he had never lost trust in him.

[23] Tellingly, Mr Botha conceded that the strike was violent and it later degenerated into tragedy as lives and properties were unfortunately lost. As such, the Commissioner was spot on in his finding that Mr Groenewald was not ill-motivated when he sent the voice note to his Neighbourhood Watch Group but was cautioning them about their safety.

[24] In sum, the commissioner’s findings are beyond reproach if regard is had to the totality of evidence that was before him. In Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others,[15] the LAC aptly observed that:

‘…. the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review.’

[25] It follows that Sibanye’s impugn is unsustainable as it is premised on the cherry-picked evidence that supports its case without

justification and contrary to the caution by the LAC in SA Rugby Union v Watson and others,[16] that a fragmented piecemeal analysis of evidence cannot be countenanced as it conflates review with appeal.

Conclusion

[26] In all the circumstances, the award is unassailable as it falls within the band of reasonable decisions.

Costs

[27] As a rule, in this Court costs do not follow the result in line with the requirements of the law and fairness. However, in the present case, Mr Groenewald is an individual litigant who had to expend on legal costs to defend the award against an impolitic impugn by Sibanye. Moreover, the time has come for this Court to utilise costs orders, to weed out the appeals that are disguised as reviews, where the facts permit and as typified in the present case, which are inundating this Court and sabotaging the efficient delivery of its constitutional mandate.

[28] I, accordingly, make the following order:

Order

1. The review application is dismissed.

2. The applicant, Sibanye Gold Protection Services Limited, shall pay the third respondent’s, Mr Groenewald, costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate Z Ngwenya

Instructed by:

SolomonHolmes Attorneys

For the Third Respondent:

Mr Jean Du Randt of Du Randt Dutoit Pelser Attorneys

[1] Act 66 of 1995, as amended.

[2] Practice Manual of the Labour Court of South Africa, effective 2 April 2013.

[3] See: Steenkamp and others v Edcon Limited [2019] ZACC 17; (2019) 40 ILJ 1731 (CC) and Grootboom v National Prosecuting Authority and another [2013] ZACC 37; 2014 (2) SA 68 (CC).

[4] 1962 (4) SA 531 (A) at 532C–D.

[5] NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10.

[6] See: Pleadings, pp 9-10 para 23.

[7] See: Pleadings, p 10 para 25.

[8] [2021] ZACC 36; (2022) 43 ILJ 91 (CC) (Booi) at para 44.

[9] Ibid at paras 50 – 51.

[10] [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) (Mofokeng) at paras 30 - 33.

[11] Id at para 32; see also Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC); (2015) 36 ILJ 1511 (LAC) (Palluci)at paras 15 -16.

[12] See: Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA); Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA [2014] 1 BLLR 20 (LAC).

[13] See Record, vol 1, p 28.

[14] See: Arbitration Award, pleadings, p 21.

[15] (2015) 36 ILJ 1453 (LAC) at para 12.

[16] (2019) 40 ILJ 1052 (LAC) at paras 25 - 26.