---

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REASONS

Case no: LCA 27/2008

In the matter between:

OLD MUTUAL NAMIBIA LIMITED............................................................................APPELLANT

And

MATHEUWS NDHIFILENYA.....................................................................................RESPONDENT

Neutral citation: Old Mutual Namibia Limited v Mathews (LCA 27-2008)[2016] NALCMD 16  (27 April 2016)

Coram: HOFF J

Heard: 12 April 2013

Order: 31 May 2013

Reasons: 27 April 2016

Summary: Labour Court – Procedural fairness – consequences of failing to cross-examine – elementary and standard practice for a party to put to each opposing witness as much of his own case or defence as it concerns that witness – grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Failure to cross-examine may prevent a party from later disputing the truth of a witness’s evidence. Substantive fairness – plea of guilty at disciplinary hearing constitutes a valid and fair reason for dismissal. Quantum of award – when a plaintiff is in a position to lead evidence which will enable the court to access financial losses suffered by him he should do so and not leave the court to guess the amount. When plaintiff has not produced such evidence court is justified in giving absolution from the instance.

REASONS

HOFF, J:        This court on 31 May 2013 gave the following order:

 

‘It is ordered:

1.    That the appeal succeeds.

2.    That the finding by the magistrate that the respondent failed to provide a fair and valid reason for the dismissal is set aside as well as the finding of procedural unfairness.

3.    That the order that the appellant is to pay the respondent compensation in respect of lost salaries from 20 October 2000 until 27 July 2007 plus 20% interest if not paid on 30 January 2008 is set aside.

4.    The dismissal of the respondent is confirmed;’

 

These are the reasons.

 

[2]        The respondent referred a complaint to the district labour court in terms of the Labour Act 6 of 1992 on the basis of an unfair dismissal (without valid and fair reason), claiming reinstatement, alternatively compensation for loss of income. The appellant during the district labour court proceedings called, as its first witness, Mr Michael J van Vuuren (van Vuuren), who presided over the disciplinary hearing in which the respondent was charged with fraud and theft. Van Vuuren testified that, the respondent employed as an advisor had been informed of his right to legal representation as well as his right to be assisted by an interpreter prior to the disciplinary hearing. The respondent elected not to make use of the services of a legal representative, neither that of an interpreter.

 

[3]        It was testified that the main duty of the respondent was to provide clients with financial advice and to sell insurance policies. The witness testified that on 20 October 2000 the two counts were put to the respondent (which he understood) and that the respondent pleaded guilty to both charges and apologized for his wrongful behaviour. The respondent was given the opportunity to present mitigating factors. The sanction imposed was a dismissal. Thereafter, the appeal procedures were explained to the respondent. This witness denied that the respondent had been summarily dismissed without a disciplinary hearing.

 

[4]        The witness testified that a Mr Hennie Steenkamp was the prosecutor and Mr Lucky Kanganjera took down the minutes of the hearing. The witness testified that the respondent requested that Mr Lucky Kanganjera should leave the hearing because of personal issues he had with Mr Kanganjera. One of the reasons why Mr Kanganjera was present during the proceedings, according to Mr van Vuuren, was because Mr Kanganjera was at that stage, in a ‘management development phase’ and he (van Vuuren) deemed it appropriate ‘to expose him to such an opportunity’. It was never disputed during cross examination that the respondent requested Mr Lucky Kanganjera to leave the hearing especially in view of respondent’s contention that there was no disciplinary hearing held. What was alluded to during cross examination was that the witness had been involved in counseling the respondent in respect of improving his poor performance and poor behaviour at some stage and should therefore not have presided at the disciplinary hearing, implying bias on the part of the witness. The witness replied that he had no prior knowledge of the disciplinary hearing until that particular morning. The witness in re-examination further stated that he never counselled the respondent in respect of any conduct similar to that which was alleged in the charge sheet.

 

[5]        This witness testified during cross examination by Mr Salomon (the representative of the respondent) that the respondent was a poor performer and had in the past been counselled by himself to assist him to overcome certain weaknesses. The witness further explained that no witnesses had been led during the disciplinary process because of the fact that the respondent had pleaded guilty. This witness also denied the allegations that the dismissal letter had been prepared prior to the disciplinary hearing.

 

[6]        The second witness called was Johanna Jansen van Rensburg who was the secretary of Mr Koos Symington, a personal finance advice manager. She testified that she was aware of a disciplinary hearing conducted in the office of the previous witness during October 2000. She knew the respondent as a financial advisor. She testified that she knew about the arrangements that were made for a hearing to be held. She testified that she herself was not personally involved during the disciplinary hearing.

[7]        The respondent testified that on 20 October 2000 he was informed of a meeting at 14h00 that same day. When he arrived at the office of Mr Mike van Vuuren he was presented with a dismissal letter which had already been completed by Mr van Vuuren. The respondent testified that there was no disciplinary hearing. When asked during examination-in-chief why he had requested Mr Kanganjera to leave the meeting, the respondent replied that Mr Kanganjera made a mistake to call him. The rest of the answer was inaudible. Respondent testified that he had been informed by a Paulus Ileka a week prior to the 20^th October that he would be dismissed. The respondent denied any knowledge of the reason why he had been dismissed. The respondent testified that after he had been asked ‘to leave Old Mutual’ by Mr van Vuuren he had been threatened that he would be blacklisted should he not agree to resign. The respondent denied that he had received any written notice of a hearing seven days prior to 20 October 2000.

[8]        During cross examination, the respondent testified that his complaint was that he had been dismissed without being provided with any valid reason. The respondent added that he was never called in for any disciplinary hearing. The witness conceded that on the Complaint Form (form 2) completed and signed by himself during October 2001, no mention was made of any procedural unfairness. When the respondent was confronted that during the rule 6 conference on 28 November 2001, attended by himself, no mention was made by him that there was no disciplinary hearing or that he did not receive the charges, the respondent evaded the question. The respondent was also confronted that in his affidavit in support of an application for a rescission of judgment in the district labour court he never mentioned that no disciplinary hearing took place, the respondent reluctantly conceded that this did not appear in his supporting affidavit. When it was put to the respondent that during the four year history of his case no amendment of his claim to include procedural unfairness had been effected, he replied that he was not a ‘lawyer’.

[9]        During cross-examination, the respondent repeated that the next day after the 20^th October 2004, he went to make an appointment with a lawyer since he wanted to be reinstated. The respondent testified that he could not remember what ‘appointment date’ was given by the lawyer. When it was pointed out to the respondent that 20^th October was a Friday and the next day a Saturday, the respondent replied that he only phoned the lawyer on the Saturday and was informed to come in on the Monday. The respondent conceded that he did not see the lawyer the next day. This is a contradiction.

[10]      It was submitted by Mr Barnard on behalf of the appellant that the court a quo  has misdirected itself on a number of factual findings and that there were further a number of incorrect findings on questions of law which vitiated the judgment  in toto.  

 

[11]      The  appellant appealed against the following findings and rulings of the district labour court:

1.            The ruling that the grounds of complaint included a complaint against procedural fairness where it was not pleaded in the complaint and only raised the first time at the trial;

2.            The ruling that the respondent (complainant) may introduce documents (exhibit ‘C’) in evidence without having made discovery despite being called upon to do so.

3.            The ruling that the cross-examination on behalf of the respondent (complainant) on mitigation and actual losses is not relevant;

4.            The ruling that the evidence of the respondent (complainant) was that as she understood it and not as interpreted by the interpreter;

5.            The finding that exhibit B is ‘questionable’;

6.            The finding that the disciplinary hearing took place on 28 October 2000;

7.            The finding that there was a defect in the disciplinary hearing or that the hearing was ‘impaired’;

8.            The ruling that evidence was required at the disciplinary hearing to prove the fact upon which the charges were based despite the plea of guilty;

9.            The finding that ‘Steenkamp’ was the chairperson at the disciplinary hearing and that he was not independent or did not comply;

10.         The finding that the rights of ‘this accused person were grossly violated’ as a notice of the disciplinary hearing was not given;

11.         The finding that there was no hearing at the disciplinary hearing;

12.         The finding that the process adopted by the appellant amounted to constructive dismissal;

13.         The ruling that the appellant was required to adduce evidence of the facts upon which the charges were based and upon which the respondent (complainant) pleaded guilty in the district labour court again;

14.         The finding that there was no fair and valid reason for the dismissal;

15.         The ruling that on the loss allegedly suffered and the order that the appellant pay  a loss of salary without having regard to the factors stated in s 46(4)(b) of the Labour Act 6 of 1992;

16.         The ruling that the testimony of the respondent (complainant) was acceptable and not rejecting the testimony by the respondent (complainant).

[12]      The grounds of appeal were:

(i)            The respondent’s (complainant’s) case on the pleadings was at all times up for the day of the trial based on substantive fairness, ie that there was no fair and valid reason. No amendment was asked and none was granted yet the Honourable Court allowed the case to proceed on the basis that the complaint included a complaint against procedural fairness.

(ii)          The evidence by the respondent (complainant) and the evidence on behalf of the appellant are mutually destructive. A court cannot accept both and must choose between the two versions. Both versions cannot stand. There was no reason for the Honourable Court not to accept the testimony of the witnesses on behalf of the appellant. On the other hand, the complainant as a witness was not credible and the Honourable Court erred by not rejecting his evidence.

(iii)         No evidence was adduced on behalf of the respondent (complainant) on the loss allegedly suffered, steps taken in mitigation and no consideration was given to the factors stated in s 46(4)(b). Yet the Honourable Court made an order for payment of salary lost for a period.

(iv)         The order made by the Honourable Court is not effective and cannot be given effect to as ‘loss of salary’ does not amount to an order which can be given effect to and upon which execution can be levied. A new trial is necessary to determine the actual alleged loss.

(v)          The respondent (complainant) did not prove its case ie the quantum of its claim and the Honourable Court should have granted absolution of the instance.

(vi)         The witness on behalf of the appellant testified as to the facts that the charges at the disciplinary hearing were founded upon. The respondent (complainant) did not adduce any evidence to dispute the offence charged with and to which he pleaded guilty at the disciplinary hearing. The Honourable Court should have found that the respondent (complainant) had committed the offence.’

 

[13]      It was submitted by Mr Barnard that the presiding officer in the district labour court seriously misdirected herself by allowing procedural unfairness to form part of the complaint, that it was unfair to the appellant, and amounted to trial by ambush.

 

[14]      Mr Tjitemisa who appeared on behalf of the respondent (in the appeal) submitted that in terms of rule 10(1) of the district labour court Rules, the chairperson of the district labour court has wide powers and a discretion regarding the conduct of proceedings and was entitled to allow the claim to include procedural unfairness. Mr Barnard replied that such wide powers do not include a chairperson to allow a trial by ambush. It was further submitted that although the provisions of the district labour Court Rules 4(c) and 7(2) may require less formality than those applicable to pleadings in the Magistrate’s Court, the principle purpose thereof remains to adequately present and to clarify the issues between the parties.

 

[15]      In any event, it was submitted that even if procedural unfairness was properly allowed the allegations in that regard had been soundly refuted. I agree. The complaint of procedural unfairness was limited to two issues, namely that documents were fabricated, and that there was no disciplinary hearing. As indicated (supra) the chairperson of the disciplinary hearing testified that there was a hearing as reflected in the minutes thereof (exhibit B). During cross-examination of the chairperson of the disciplinary hearing, only two questions were put to him in relation to the allegation that no disciplinary was held namely that the dismissal letter was prepared beforehand (which was denied), and how the chairperson could prove that a disciplinary hearing did not take place (which was answered). No version on behalf of the respondent on the issue was put to the chairperson to respond to. Significantly, the testimony that the respondent pleaded guilty was not denied during cross examination.

 

[16]      The consequences of failing to cross examine was stated as follows: [1]

 

            ‘It is in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as it concerns that witness, and if need be, to inform him, if he has not given notice thereof, that other witnesses will contact him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross examination and afterwards argue that he must be disbelieved.’

 

[17]      As stated by Hoffmann and Zeffert[2], ‘failure to cross examine may therefore prevent a party from later disputing the truth of a witness ‘s evidence’. In President of the RSA v Rugby Footbal Union [3], the following duty of a party was formulated:

 

            ‘The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule, it is essential, when it is intended to suggest that the witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross examinations showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character.  If a point in dispute is left unchallenged in cross examination, the party calling the witness is entitled to assume that the unchallenged witnesses testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn (1893) 6 R 67 (HL) and has been adopted and consistently followed by our courts.’

 

[18]      It follows that the testimony that there was no disciplinary hearing and that the respondent had pleaded guilty could not have been disputed during the proceedings in the district labour court. What is further significant in respect of the allegation that no disciplinary hearing was held and the allegation that the minutes of the disciplinary hearing had been fabricated beforehand is the fact as reflected in the minutes, and not disputed by the respondent, that Mr Lucky Kanganjera was present during the proceedings, that the respondent had objected to his presence, and that his presence had been explained to the respondent.

 

[19]      This in my view confirms the event of the disciplinary hearing since it is objectively impossible to fabricate minutes in respect of any future event. If the version of the respondent were to be accepted, for the sake of argument, it means that when the minutes were allegedly fabricated the author had with divine foresight included respondent’s objection to the presence of Mr Lucky Kanganjera. It further proves that the respondent was untruthful in respect of the alleged fabrication of the minutes and the allegation that no disciplinary hearing was held.

 

[20]      The respondent could not, during cross examination, explain why he did not raise the issue of procedural unfairness in his complaint form, neither could he explain why procedural unfairness had not been raised at the rule 6 conference. This failure in  my view underscores the untruthfulness of the respondent, especially in view of the fact that he had been legally represented at all relevant times.

 

[21]      There was no evidence presented at the proceeding in the district labour court that the minutes of the proceedings at the disciplinary hearing had been fabricated. It must therefore be accepted as reflected in the minutes of the disciplinary hearing that the respondent had been given notice of the disciplinary hearing 7 days prior to 20 October 2000. The presiding officer at the proceedings of the district labour court, without dealing with the probabilities at all, concluded that the record of the proceedings in the disciplinary hearing was ‘questionable’, that no notice was given of the disciplinary hearing and that the rights of the respondent had been grossly violated. This was a serious misdirection.

 

[22]      Since two irreconcilable versions were put before the district labour court, the presiding magistrate should have made credibility findings and the reasons for preferring the one version above that of the other. This was not done. In R v Dhlumayo[4] certain principles applicable to the findings of a trial court on questions of fact were enunciated. It was stated that sometimes the Appellate Court may be in as good a position as the trial judge to draw inferences, whether they are drawn from admitted facts or from the facts found by the Court. It was also stated that there may be a misdirection on fact by the trial judge where the reasons are either on their face unsatisfactory or where the record shows them to be such; there may be such a misdirection also where, though the reasons as far as they go are satisfactory, the trial court is shown to have overlooked other facts or probabilities.

 

[23]      In Van Aswegen v De Clercq[5] it was held that where the trial court has reached no credibility findings, the Appellate Court has to do its best on such material it has before it. The onus should not be allowed to operate in such a case unless and until, after all the relevant evidence has been examined to see whether there is a sufficient balance of probabilities on one side or the other.

 

[24]      The finding of procedural unfairness by the presiding magistrate in respect of the proceedings at the disciplinary hearing is bound to be set aside.

 

Substantive fairness

 

[25]      The district labour court found that no evidence was placed before the court regarding the alleged offences and consequently that the offences had not been proved and therefore it was not proved that there was a valid and fair reason for the dismissal. The case of the appellant in the district labour court was that the respondent had pleaded guilty at the disciplinary hearing and therefore no evidence was presented at the disciplinary hearing and at the district labour court. It was submitted by Mr Barnard that the valid and fair reason for dismissal was the plea of guilty during the disciplinary hearing, and that it was not necessary to have dealt with the merits (by way of calling witnesses) at the district labour court proceedings.

 

[26]      This Court was referred to the labour case decided in the Industrial Court in the Republic of South Africa, i.e. Knoetze v Rustenburg Platinum Mines (LTD)[6] where an applicant employee was dismissed for assaulting a fellow employee and sought reinstatement inter alia on the ground that he had not been afforded a disciplinary enquiry. The Court found that the assault was unprovoked and that Knoetze had admitted guilt prior to his dismissal.

 

[27]      Delta Motor Corporation (Pty) Ltd v Finnemore NO and Others[7] concerned the review of a decision of a commissioner during arbitration proceedings that a dismissal for a conviction of a repeat offender for absence without leave, was too severe a penalty. The Labour Court found that when the charge sheet was handed to the employee he knew that his absence had not been condoned, hence his plea of guilty. The Court was satisfied that there was no rational objective basis between the commissioner’s conclusion that the employee’s dismissal was unfair and her factual findings regarding his misconduct. The award was set aside and substituted by an order that the employee’s dismissal was fair.

 

[28]      In Namib Mills v Angula Shigweda [8] the respondent pleaded guilty to three counts, one of which was the flagrant disregard of safety standards. The Labour Court found that, in the circumstances, the arbitrator ought to have accepted the guilt of the respondent in respect of those three charges and found that the disciplinary hearing was unfair solely on the fact that there was no interpreter who could speak fluently the mother tongue of the respondent.

 

[29]      Grogan[9] states that ‘courts have condoned failure to hold pre-dismissal hearings in two situations. The first is where the circumstances were such that, objectively the employer could not reasonably have been expected to hold a hearing. Such circumstances might arise when the employer is compelled to dismiss instantly in order to protect lives and property or to give effect to an ultimatum, and where employees have by their conduct abandoned or waived their right to hearings, e.g. by refusing to attend the inquiry or by abusing the employer at the disciplinary hearing, or where employees have admitted their guilt.’ (Emphasis provided)

 

[30]      In the present matter on the objective facts it had been proved that there in fact had been a disciplinary hearing at which the respondent had pleaded guilty. The respondent did not attempt to refute the version of events as alleged in the charge sheet at the disciplinary hearing, neither did he do so in his application for rescission of judgment; and also not in the district labour court.

 

[31]      There is in my view, merit in the scepticism of Mr Barnard regarding the fact that the respondent had waited almost one year to lay the complaint, if one were to accept his contention that he had been dismissed without a disciplinary hearing being held at all. There is no explanation by the respondent for his delay in this regard. The suggestion that the chairperson had not been independent was never raised in the complaint form and was never raised during the disciplinary hearing. It was raised for the first time during cross-examination of Mr Van Vuuren during the proceedings in the district labour court.

 

[32]      The district labour court observed in respect of the question of impartiality that the chairperson, Mr Van Vuuren, ‘was part of the counselling section’ of the respondent, was the ‘immediate supervisor’ of respondent, and thirdly as chairperson expected to be independent. The chairperson further stated that the appellant being a ‘big institute’ could have appointed somebody from a different department to preside over the disciplinary hearing. I agree, but does this indicate any bias on the part of the chairperson of the disciplinary hearing? I do not think so.

 

[33]      The magistrate erred in fact when she referred to the chairperson as ‘immediate supervisor’ of the respondent even though he was at that state a superior of the respondent. Mr Van Vuuren explained why he had on occasion counselled the respondent and in respect of which topics. The chairperson according to the testimony had no prior knowledge of the charges and there is no evidence that he was in any way predisposed.

 

[34]      It is in my view important to keep in mind that it was not necessary for the chairperson to evaluate any evidence presented at the disciplinary hearing or to make credibility findings in view of the pleas of guilty by the respondent. The respondent never raised the issue of lack of impartiality in his evidence-in-chief during the district labour court proceedings. There was therefore no evidence of any facts which could have given rise to reasonable apprehension of bias on the side of the chairperson.

 

[35]      In Sikunda v Government of the Republic of Namibia and Another [10] the High Court expressed itself in respect of the issue of recusal[11]:

 

‘The factors to be taken into account in deciding whether a judge should recuse himself

on account of possible bias, could be summarised as follows: (1) there must be a suspicion that the judicial officer might, not would, be biased; (2) the suspicion must be that of a reasonable person in the position of the accused or litigant or member of the public; (3) the suspicion must be based on reasonable and reliable grounds; and (4) one which a reasonable person would, and not might have.’

 

[36]      In the absence of any of the four factors mentioned in Sikunda, the magistrate in the district labour court seriously misdirected herself when she found that there was a ‘defect in the disciplinary hearing that took place at the Old Mutual.’ The finding by the presiding magistrate in the district labour court that the appellant wanted to get rid of the respondent quickly and that the dismissal was one of ‘constructive dismissal’ is not supported by the record and is another misdirection.

 

Quantum of the award

 

[37]      The presiding magistrate made the following order:

 

‘. . . Respondent is ordered to pay for his loss of salary from 20^th of October 2000 to 27

July 2006 plus twenty percent interest. That payment must be done before the 30^th of January 2008.’

 

[38]      She continued as follows:

 

‘I believe there is no dispute about the salary because Respondent know or we will

always go back to the record of what his salary is and it’s based on that salary that we have because I have no exhibit on the salary…

 

But I am not giving an order of an exact figure because I think it is well establish (sic)’

 

[39]      The respondent in his appeal did not adduce any evidence in respect of financial losses suffered by him. It was submitted by Mr Barnard, and correctly so, that the burden to prove damages or losses includes the burden to prove that reasonable steps were taken to mitigate any alleged damages or losses.

 

[40]      In Jo-Mari Interiors v Monton[12] this Court referred with approval to Esso Standard SA (Pty) Ltd v Katz[13] which in turn referred to the matter of Hersman v Shapiro and Co[14] where Strafford J said the following:

 

‘Monetary damage having been suffered, it is necessary for the Court to assess the

amount and make the best use it can of the evidence before it. There are cases where the assessment by the Court is very little more than an estimate but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances the Court is justified in giving, and does give, absolution from the instance.’[15]

 

[41]      In Klopper v Mazoko[16] Tindall J remarked as follows:

 

‘. . . when a plaintiff is in a position to lead evidence which will enable the Court to assess the figure he should do so and not leave the Court to guess the amount.’

 

[42]      The magistrate in the district labour court should have granted absolution from the instance in respect of question of compensation, since the court was not in a position to make any award in respect of losses suffered by the respondent.

HOFF, J

APPEARANCES

APPELLANT                         P Barnard

Instructed by LorentzAngula Inc, Windhoek

RESPONDENT: Mr Tjitemisa

Of                    Tjitemisa & Associates, Windhoek

---