Wits Health Consortium (Pty) Ltd v Manshule NO and Others (JR176/2010) [2013] ZALCJHB 212 (28 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR176/2010

In the matter between:

WITS HEALTH CONSORTIUM (PTY) LTD ................................................Applicant

and

MANSHULE N N.O. (cited in his capacity as

Commissioner of the Commission for Conciliation,

Mediation and Arbitration) ...........................................................First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION ............................................Second Respondent

QWABE, VELA LINDIWE .............................................................Third Respondent

Heard: 19 July 2013

Delivered: 28 August 2013

Summary: Review application – standard of evidence evaluation – mistake of law – standard correctly applied - ex post facto hearsay evidence – profoundly prejudicial nature – value of polygraph evidence in the circumstances – absence of corroborative evidence. Not reviewable.

judgment

______________________________________________________________

EDMONDS AJ

Introduction

[1] This is an application to review and set aside an arbitration award issued by the second respondent on 8 November 2009 under CCMA case number GAJB24189/2009.

[2] The third respondent in the review application seeks an order making the arbitration award dated 18 November 2009 under case number GAJB 24189-09 an order of Court.

[3] Both applications are opposed.

Background

[4] The third respondent was employed by the applicant as an Accountant on the 1 June 2002.

[5] The applicant provides financial and human resources support services for a number of syndicates related to and affiliated to the University of Witwatersrand. Each of the syndicates is donor funded.

[6] Any payment made from donor funds must be recorded and duly supported by supporting documentation. Payment must be authorised by a responsible manager one of whom is the third respondent.

[7] Payment is done electronically and must be released by 2 persons, one of whom is a responsible manager such as the third respondent.

[8] Once payment has been made, the documents and payment record are placed in a finance file.

[9] In June 2009, one of the applicant’s accountants, Krishnie Govender (Govender), attended to bank reconciliations for one of the syndicates serviced by the applicant, SA Hart. Govender noticed a debit entry in the bank statement in the sum R11 888.20 against SA Hart on 21 May 2009, which was referred to as a “correction”. Upon investigation, Govender was unable to find supporting documentation for this transaction.

[10] Upon investigation with the bank, it was discovered that the amount had been transferred to another syndicate, which was also serviced by the applicant, by the name of TOGRU, from SA Hart’s account.

[11] Upon investigation of TOGRU’s accounts, it was discovered that a payment of R11 888. 20 had been transferred from TOGRU to an unknown third party on 13 May 2009. This third party’s name Muthaphuli Madzivhela (Madzivhela) and was referred to as a leave bonus. Once again, there were no supporting documents for this payment to Madzivhela.

[12] It thus appeared that the payment from SA Hart on the 21 May 2009, called a correction, would appear to be a correction of the payment made by TOGRU on the 13 May 2009.

[13] The payment from SA Hart to TOGRU on 21 May 2009 was thus made to conceal the payment made from TOGRU to Madzivhela on the 13 May 2009.

[14] It was discovered that the payments on both 13 and 21 May 2009 were made from the computer of Walter Mamburu (Mamburu) who worked as a payment capture clerk and reported to the third respondent.

[15] Mamburu had a close and personal relationship with the third respondent.

[16] Mamburu admitted making the payment on 13 May 2009.

[17] The payment of the 21 May 2009 was recorded on the system as having been made by Govender and was also recorded in Govender’s

payment book. Govender was, however, on leave, on 21 May 2009 and the handwriting in her payment book was not hers.

[18] A disciplinary enquiry was held against Mamburu in regard to these fraudulent payments and he was dismissed.

[19] Mamburu could not have affected the transactions as payment had to be released by an accountant of whom they were three, the third respondent, Patricia Mans and Rochelle Hudson.

[20] All three denied any involvement.

[21] Each of the three accountants was subjected to a polygraph test amongst other employees in the department.

[22] The result of the polygraph test conducted on the third respondent was that she was deceptive and gave false statements when she answered ‘no’ to the questions of planning the fraudulent transaction, destroying documents relating to the transactions and deriving benefit from the transactions.

[23] The only other person who failed the polygraph test based on the same questions was Mamburu. All other employees tested showed no deception and passed the test on the same questions.

[24] The third respondent was suspended and required to attend a disciplinary enquiry on 17 August 2009. She was found guilty on the charge of either being aware of or involved in the fraudulent transactions.

[25] On 19 August 2009, the third respondent was dismissed.

[26] Madzivhela was traced and attended at the applicant’s office on the 9 September 2009 and spoke to the applicant’s Financial Manager, Vanessa Du Preez (du Preez).

[27] Another of the applicant’s employees, Alzina Takalani (Takalani) was present to act as witness and interpreter.

[28] Madzivhela told Du Preez that the third respondent had arranged that money be paid into his bank account.

[29] The meeting took place after the third respondent’s disciplinary enquiry and Madzivhela did not make himself available to give evidence at the arbitration despite being subpoenaed on 2 separate occasions. The notes taken at the meeting of the 9 September

2009 were placed before the arbitration.

[30] At the arbitration, the third respondent did not contest the procedural fairness of her dismissal.

[31] The first respondent found that the third respondent had been unfairly dismissed on 19 August 2009 but, because the third respondent did not wish to be reinstated, the first respondent ordered compensation in the amount R150 000.00 to be paid to the third respondent.

Grounds of Review

[32] The applicant submits that the first respondent applied the wrong standard of evidence evaluation in that the test applied was ‘beyond a reasonable doubt’ and not ‘on a balance of probabilities’. The applicant states that this is an error of law and that the award should be reviewed and set aside on this basis alone.

[33] The applicant is correct that an award is reviewable on the basis of a material mistake of law.1 However, the first respondent very cautiously canvassed all of the evidence including the value of the polygraph test coupled with the fact of the third respondent’s close relationship with Mamburu as well as the ex post facto hearsay document provided by the applicant of Madzivhela’s statement.

[34] Having taken all the available evidence into account, the first respondent found that the applicant had not proven its case. I do not find that the first respondent required that the applicant prove its case beyond a reasonable doubt and do not find that his finding that the respondent had not proven its case on the evidence available to the arbitration is not one which no reasonable commissioner could make.

[35] The first respondent’s finding that the dismissal was unfair based as it was on his findings that the probative value of the polygraph test in the absence of corroborating evidence credibly linking the applicant to the fraudulent transaction rendered the outcome of the polygraph test irrelevant because, on its own, it did not prove any guilt.

[36] The first respondent thus did not completely disregard the polygraph test results but disregarded them in the absence of other

corroborating evidence credibly linking the applicant to the fraudulent transaction.

[37] In regard to Madzivhela’s evidence, it is contended that the first respondent’s rejection of this evidence was not the decision a reasonable decision maker would make.

[38] The first respondent did not simply disregard the evidence of Madzivhela. He weighed it up in its context given the fact that it was untested and the third respondent did not have an opportunity to deal with the allegations as, given the exceptionally prejudicial

nature thereof, it required to be properly tested either at the arbitration or the disciplinary enquiry.

[39] Section 3 of the Law of Evidence Amendment Act2 gives the Court a discretion to admit hearsay evidence, provided the Court is satisfied that it should do so having regard to the nature of the proceedings; the nature of the evidence; the purpose for which the evidence is tendered; the probative value thereof; the reason why the evidence is not given by the person who has direct knowledge thereof; any prejudice to the other party which the admission thereof might entail or any other factor which is, in the opinion of the Court, relevant. Arbitrators and CCMA commissioners are, in particular, entitled to admit hearsay evidence depending on the particular circumstances in the proceedings before the CCMA.

[40] Had the commissioner admitted the hearsay evidence of Madzivhela without the opportunity to test the evidence, he would have been obliged to conclude that the third respondent was guilty of the charges against her.

[41] There appears to be no good reason for the absence of Madzivhela from the arbitration other than his failure to comply with a subpoena and further hearsay evidence of threats allegedly made against him. In circumstances where the prejudice to the third respondent of the admission of Madzivhela’s hearsay evidence would lead to profound prejudice, its exclusion was, in my view, reasonable.

[42] I was unable to find in the record an application by the applicant for a postponement to enable the applicant to establish the reason for Madzivhela’s failure to comply with the subpoena and to secure his presence at the proceedings. In the circumstances, blame cannot be placed at the door of the first respondent in not granting such a postponement.

[43] In all the circumstances and having regard to the applicable law,3 I do not find that the decision arrived at by the first respondent is one which no reasonable commissioner could make.

[44] In the result, I make the following order;

1. The application to review and set aside the arbitration award of the second respondent dated 18 November 2009 under case number GAJB24189-09 is dismissed.

2. The second respondent’s arbitration award dated 18 November 2009 issued under case number GAJB24189-09 is made an order Court.

3. The applicant in the review application is to make payment of the costs in both applications.

_____________________

Edmonds, AJ

Acting Judge of the Labour Court

Appearances:

For the applicant: H Lee of Snyman Attorneys

For the respondent: A Goldberg of Goldberg Attorney.

APPEARANCES:

For the Applicant:

For the Third Respondent:

1Eskom Holdings Limited v Fipaza and Others (2013) 34 ILJ 549 (LAC) at para 62.

2Law of Evidence Amendment Act 45 of 1988.

3Sidumo and Another v Rustenburg Platinum Mines Limited and Others (2007) BLLR 1097 (CC) at para 110.