Sibanye Protection Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1175/18) [2021] ZALCJHB 39 (28 January 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1175/18

In the matter between:

SIBANYE PROTECTION SERVICES (PTY) LTD Applicant

and

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

First

Respondent

COMMISSIONER PAUL PHUNDU N.O Second

Respondent

NATIONAL UNION OF MINEWORKERS

OBO NTABENJANE SAMUEL RANTOA Third

Respondent

Heard: 01 December 2020

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 28 January 2020.

Summary: Circumstantial case – when an inference in favour of both parties is equally possible, the litigant bearing the onus shall not have discharged the onus of proof burden. The court would not interfere with the credibility findings of a commissioner unless they are completely at odds with the probabilities based on the entirety of the evidence.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] The applicant, Sibanye Protection Services (Pty) Ltd (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 Paul Phundu (Commissioner), under the auspices of the first respondent, the

Commission for Conciliation Mediation and Arbitration (CCMA), under case number GAJB26884/17 and dated 18 July 2018. The Commissioner

found that the dismissal of Mr Samuel Rantoa Ntabenjane (Mr Ntabenjane), a member of the third respondent, National Union of Mineworkers (NUM), was unfair and ordered his reinstatement.

[2] Sibanye impugns the award on several grounds which I deal with later in the judgment; save to mention that the overall impugn is that the Commissioner rendered an unreasonable decision. The application is fervently opposed by NUM.

Interlocutory applications

[3] Before I deal with the merits, I need to quickly dispose of two interlocutory applications. First, Sibanye seeks condonation for the late filing of the review application by one day. NUM opposes the grant of condonation on the basis that the degree of lateness is three months and that the explanation is unreasonable. Absent from its opposing papers is the assertion as to how it computed the delay and arrived at three months. In my view, a day’s delay is obviously negligible and there is no prejudice to NUM. Accordingly, the late filing of the review application is granted.

[4] Second, Sibanye seeks reinstatement of the review application in the event it is deemed to have been withdrawn in terms of clause 11.2.3 of the Practice Manual of the Labour Court[2] (Practice Manual). There is no need to pronounce in this regard because NUM did consent to the late filing of the record.[3]

Main application

[5] Mr Ntabenjane was employed by Sibanye as a Security Guard with effect from 1977. On 24 November 2017, he was dismissed for misconduct, having been in the employ of Sibanye for 40 years. He was charged as follows:

‘…Gross dishonesty in that on 7 June 20217 at Cook # 4 you attempted to give a bribe to a Security Officer when you offered him an amount of R50 000 in exchange for not reporting your involvement in illegal mining activities.’

[6] Unhappy with the dismissal of Mr Ntabenjane, NUM referred a dispute to the CCMA which was arbitrated after a failed conciliation.

[7] During the arbitration proceedings Sibanye led evidence of Messrs Welcome Sihu (Mr Sihu), Tobius Handelino (Mr Handelino) who were the Security Guards employed by Fidelity Security Services (Fidelity), a security company that was subcontracted by Sibanye; and Mr Steve Pulumo (Mr Pulumo), Mr Ntabenjane’s supervisor, in the employ of Sibanye.

[8] Mr Sihu testified that, on 7 June 2017, he was on a night duty together with two of his colleagues, Messrs Handelino and Mr Bongani Kibido (Mr Kibido) who were also in the employ of Fidelity. They were posted at Cook 4 bank area and were only responsible for accompanying employees in the conveyance cage and from underground working areas. It is common cause that they did not lock or unlock or keep the keys for the gates with them.

[9] At about 20h00, Mr Sihu was approached by Mr Ntabenjane who had a bunch of keys and asked that he be showed key number 42 which opens the security gate at the bank area, which he did. He was alone at that time as his colleagues had gone underground, escorting employees. He became suspicious of the conduct of Mr Ntabenjane and decided he followed him to the bank area.

[10] As he approached the bank area, he notices the surface gate was open. When he looked down at the bottom of the sub-bank he saw Mr Jaco Muller, (Mr Muller) a Banksman, who had no business to be there. He instructed Mr Muller to come out and noticed that there was some movement in the background. He asked Mr Ntabenjane to lock the gate and they all went to the office. On the way to the office, Mr Ntabenjane offered him R50 000 to agree not to report the incident because he, Mr Ntabenjane, would lose his job. He refused the offer. The same offer of R50 000 was repeated by Mr Muller.

[11] When his colleagues came from underground, he reported the incident in the presence of Messrs Ntabenjane and Muller. Mr Ntabenjane offered his colleagues R50 000 as well. However, Mr Sihu conceded under cross-examination that it would not have made sense for Mr Ntabenjane to offer a bribe to his colleagues when he, Mr Sihu, had already rejected it.

[12] Mr Sihu asked this colleague to watch the bank area while he went to call his supervisor from Fidelity, Mr Phillip Gous (Mr Gous), to come with a backup as there were suspicious people at the sub-bank area. While they were waiting for Mr Gous, Mr Pulumo arrived with three other people as a backup after receiving a call from the reception that there were illegal miners at the sub-bank area. It is common cause that Mr Ntabenjane had called the reception. Mr Pulumo instructed that the gate be opened and the illegal miners be taken out. There were 22 illegal miners that were apprehend that night.

[13] Mr Pulumo testified that he questioned Mr Sihu and his colleagues as to what had transpired and no one came forth with the allegation that Mr Ntabenjane attempted to bribe them by offering them R50 000. It was only the next night that Mr Sihu approached him and reported the attempted bribe. He also conceded under cross-examinations that his enquiry as to what had transpired on the night of the incident did not implicate Mr Ntabenjane as being involved in illegal mining activities. Hence, he was surprised when he saw the contents of the charge sheet.

[14] It is clear from the transcript that Mr Handelino’s evidence was very muddled. Even though he could not properly express himself in English, interpretation service was made available. Still, there was little improvement. In any event, the crux of his evidence was that Mr Ntabenjane called him aside an offered to pay R150 000 to him and his colleagues for them not to report the illegal miners. This evidence is evidently inconsistent with Mr Sihu’s evidence who testified that Mr Ntabenjane offered a R50 000 bribe to Mr Handelino, and Mr Kibido in his presence. Notably, Mr Sihu never mentioned R150 000 as a bride. In fact, Mr Sihu was constrained to concede his evidence that all of them were offered R50 000, respectively, was inconstant with the charge sheet which only mentioned ‘a security guard’ and ‘R50 000’.

[15] Mr Handelino testified further that he spoke to the illegal miners and they implicated Mr Ntabenjane. Strangely, he did no share this information with both Messrs Sihu and Pulumo on the day of the incident or include it in his statement which he made a day after the incident, a fact he conceded under cross-examination.

[16] On the other hand, Mr Ntabenjane testified on the day of the incident, he was called by Mr Muller to open the gate at the bank area as he heard voices coming from underground. He immediately reported the presence of the suspicious people with the controller and shaft receptionist so that a backup could be sent. He denied that he had approached Mr Sihu to identify the key to open the gate or that he had offered him and his colleagues a bribe. He led evidence of his banking statements which showed that he did not have

an amount of R50 000 at that time. He also denied that he was involved in illegal mining.

[17] The pinnacle of Mr Ntabenjane’s cross examination was that he had the key to open the gate at the bank area, a fact he conceded. However, he denied opening the gate. It was his testimony that he did not check whether the gate was closed at the commencement of his shift. It would seem that Mr Muller was already at the sub-bank area when Mr Ntabenjane arrived and this was confirmed by Mr Sihu, who was following him.

[18] If indeed Mr Ntabenjane was part of Mr Muller’s plan to assist the illegal miners to exit the mine, it is mind boggling that he would request Mr Sihu to assist him to identify the key for the gate, a key that he was in charge of but could not identify that day. Also, there is no evidence to support Sibanye’s assertion that Mr Ntabenjane reported the presence of illegal miners after he had offered a bribe to Mr Sihu. Conversely, his cross examination on this issue went as follows:[4]

‘MR BOTHA:

Mr Ntabenjane I put it to you that you only reported the matter after your offer to bribe to security Fidelity members failed. What is your comment on that?

MR NTABENJANE: Say again.

MR BOTHA:

You only phoned for backup after you failed to convince Fidelity member to accept a bribe?

MR NTABENJANE: I phone the [inaudible] after the bank [Mr Muller] had told me that they see people at the shaft and I immediately reported it.’

[19] Another glaring anomaly is the charge sheet itself. There is no explanation proffered by Sibanye as why, if Fidelity security guards had been offered a bribe of R50 000 respectively, Mr Ntabenjane was not charged for offering a bribe of R150 000 to the three security guards.

Legal principles and application

[20] In SA Rugby Union v Watson and Others,[5] the Labour Appeal Court (LAC) emphasising the test for review, remarked as follows:

‘[25] The test to be applied in this kind of dispute is the one which was set out in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)[6] (Herholdt). In their joint judgment, Cachalia and Wallis JJA gave welcome additional content to the Constitutional Court’s decision in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) in respect of a review brought in terms of s 145 of the LRA. A review of an award issued by second respondent is permissible if the arbitrator has misconceived the nature of the enquiry or arrived at an unreasonable result. A result will be considered to be unreasonable if it is one that a reasonable arbitrator could not reach on all the material presented to him or her. A material error of fact as well as the weight and relevance to be given to any particular fact is not in and of itself a justification

for an award to be set aside on review (para 25).

[26] This approach was followed by Waglay JP in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration and Others (Gold Fields):[7]

‘Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable

decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome. But again, this is

considered on the totality of the evidence not on a fragmented piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad based evaluation of the totality of the evidence defeats review as a process. It follows that an argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable – there is no room for conjecture and guesswork.’ (Emphasis added)

[21] Turning to the present instance, the first ground of review is that the Commissioner ignored the pertinent evidence before him when he found that there was no evidence linking Mr Ntabenjane with illegal minors and illegal mining activities. Obviously, Sibanye led circumstantial evidence in this regard. The law regarding the drawing of factual inferences in a civil case is well established and in Cooper NO and Another v Merchant Trade Finance Ltd,[8] it was succinctly articulated as follows:

‘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.’ (Emphasis added)

[22] The process of inferential reasoning calls for an evaluation of all the evidence and not merely selected parts.[9] In the present instance, the chain of evidence led by Sibanye to support the conclusion that Mr Ntabenjane was involved in illegal

mining activities could not hold. Firstly, as mentioned above, Mr Ntabenjane did report the illegal mining activity on the day of the incident. Mr Pulumo accordingly responded with the backup as requested and the illegal miners were apprehended.

[23] It is not clear as to how Mr Ntabenjane could not have known that Mr Muller had devious intentions when he called him. Indeed, Mr Muller could have opened the cage for the illegal miners, but nothing points to Mr Ntabenjane. Mr Muller resigned the next day and as asserted by Sibanye, he was avoiding to face the consequences of his actions.

[24] It is, therefore, clear that the evidence of NUM in rebuttal is equally probable. As such, Sibanye failed to discharge the onus of proof.

[25] The second ground is that the Commissioner committed a gross irregularity by finding that the Sibanye’s witnesses were inconsistent in their evidence. There is no merit in this contention. As mentioned above, chain of the facts that Sibanye sought to use to support the conclusion that Mr Ntabenjane is guilty of dishonesty, bride or illegal mining has glaring gaps. Interestingly, the major link in the chain that connects Mr Ntabenjane to the illegal mining activities is the R50 000 he allegedly offered to ‘a security officer’ in terms of the charge sheet. All Sibanye’s witnesses gave different versions in this regard.

[26] Even mathematics is not with Sibanye. It is instructive that despite all the Fidelity security guards mentioning in their statements that they had been offered a bribe of R50 000 each, the charge sheet only refers to a single officer and R50 000 as opposed to R150 000. Also, the Fidelity security guards failed to mention that they had been offered a bride at the first available opportunity when asked by Mr Pulumo on the day of the incident or mention that Mr Ntabejane is associated with the illegal miners. Clearly, the Commissioner’s finding in this regard is beyond reproach.

[27] The third ground of review lacks merit as it was Mr Pulumo himself who testified that he could not find anything linking Mr Ntabenjane with illegal mining activities. Also, he was surprised as to why the issue of a bribe was not raised with him on the night of the incident.

[28] The fourth ground of review basically refers to the Commissioner’s credibility findings in relation to Sibanye’s witnesses,

particularly Mr Handelino. It is trite that this Court would not readily interfere with the credibility findings made by commissioners. As stated in National Union of Mineworkers & another v Commission for Conciliation, Mediation & Arbitration & others,[10] the exception is when ‘the evidence on the record before the court shows that the credibility findings of the commissioner are entirely at odds with or completely out of kilter with the probabilities and all the evidence actually on the record and considered as a whole’.[11] Obviously, in the present case, the credibility findings must stand as the record shows that the Commissioner properly analysed the evidence that was before him.

[29] Overall, Sibanye seeks to cherry-picking on the evidence that was before the Commissioner, contrary to the caution by the LAC in Goldfield[12] that a fragmented piecemeal analysis of evidence cannot be countenanced as it blurs the line between review and appeal processes.

Conclusion

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

Costs

[31] As a rule, in this Court costs do not follow the result in line with the requirements of the law and fairness. Moreover, where the parties have a persisting collective bargaining relationship is typified in the present instance.

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

Order

1. The review application is dismissed.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate Kerensa Millard

Instructed by:

SolomonHolmes Attorneys

For the Third Respondent: Mr Zwane, official from NUM

[1] Act 66 of 1995, as amended.

[2] April 2013.

[3] Clause 11.2.3 provides that: ‘If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given.’ (Emphasis added)

[4] See Transcribed record, vol 7 page 23 of 28 lines 12 -19.

[5] (2019) 40 ILJ 1052 (LAC).

[6] 2013 (6) SA 224 (SCA); (2013) 34 ILJ 2795 (SCA).

[7] (2014) 35 ILJ 943 (LAC) at para 21.

[8] 2000 (3) SA 1009 (SCA) at para 7; 1027E – 1028D. See also: Woolworths (Pty) Ltd) v CCMA and Others (2011) 32 ILJ 2455 (LAC) at para 34; National Union of Mineworkers and Another v Mogale Gold, A Division of Mintails (SA) (Pty) Ltd [2015] 10 BLLR 1016 (LAC); (2015) 36 ILJ 2815 (LAC) at para 23; CSS Tactical (Pty) Ltd v Security Officers Civil Rights and Allied Workers Union (SACRAWU) and Others (2015) 36 ILJ 2764 (LAC) at para 22.

[9] Minister of Safety and Security and Another v Madikane and Others [2014] ZALAC 58; (2015) 36 ILJ 1224 (LAC) at para 44.

[10] (2013) 34 ILJ 945 (LC) para 31.

[11] Supra n 7.

[12] Ibid.