IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN CAPE TOWN)

Not reportable
Case No:   C135/2022

In the matter between

SAMWU OBI MZWANDILE SIZANI	Applicant

and

THE CITY OF CAPE TOWN	First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL	Second Respondent

MELWYN NASH N.O.	Third Respondent

Matter heard:   25 June 2024
Date of judgment:   This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date for handing down judgment is deemed to be 12 July 2024.
Summary:	Review of Commissioner’s award in terms of s 145 of the LRA. Award not reviewable. Employee left his employer’s vehicle unattended in a dangerous area at night. Mutually destructive versions of events. Commissioner properly weighed up the inherent probabilities and credibility of witnesses in preferring the employer’s version of events. Sanction of dismissal for gross negligence fitting in the circumstances.

JUDGMENT

ACKERMANN AJ

Introduction

[1]	This is an opposed review application by the applicant (‘the employee’) of an arbitration award in which the Commissioner found his dismissal substantively fair. The employee was a senior artisan, working for the City of Cape Town, the first respondent (‘the employer’).

[2]	The employer had charged the employee with gross negligence because he left a vehicle unattended for a period of time at night, outside a tavern (Chisana’s Tavern) in New Crossroads in a dangerous area, and failed to take precautions to guarantee the safety of the vehicle.

[3]	After finding the employee guilty of gross negligence at a disciplinary hearing, he was dismissed.

Condonation

[4]	The employee sought condonation for the late filing of his review application. Condonation was opposed.

[5]	I am satisfied that the employee has dealt with the principles for condonation and has established acceptable and reasonable grounds sufficient to meet the test set out in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). Condonation for the late filing of the review is granted.

The employer’s case

[6]	Ms Zameka Ndabambi (‘Ndabambi’), the employee’s supervisor on the night in question, testified that the employee should have contacted the employer and updated the person in charge of the situation (in other words, her). Instead, Ndabambi, got a call from a ‘cousin’ informing her about the vehicle and its location.

[7]	She tried to reach the employee but could not. She then tried to contact a one Ngcukana (‘Ngcukana’) (who was also on standby that night), but was also unsuccessful. She managed to get hold of Patrick May (‘May’) who was not on duty but happened to live close to where the bakkie was parked. He confirmed it was there and she asked him to look after it, while she attended to the situation.

[8]	She obtained an alternate number for Ngcukana and instructed him to fetch the bakkie and return it to the depot, which he did. 

[9]	She was unaware of whether anyone was with May, and her primary concern was for the safety of the bakkie and the driver because it was standing in a dangerous area.

[10]	She testified to the movements of the bakkie based on the vehicle tracker report. Her evidence was that the employee was grossly negligent for leaving the vehicle unattended for a long period and he should have taken precautions to safeguard the bakkie.

[11]	The employee never made an attempt to contact her as the standby supervisor that evening.

[12]	The City’s disciplinary code makes provision for dismissal in the event of gross negligence, even if it is a first offence.

[13]	She disputed that it was May who called her (rather than her calling him). She said that she had contacted May because she felt unsafe going into the area. Who called who was less important than the fact that the employee had failed to contact her because had he done so, he would not have been in trouble. The employee had failed to inform anyone in management of the situation. She was of the view that if the employee was with May at the time, he could simply have asked to talk to her.

[14]	Mphithizeli (Tayo) testified on behalf of the employer that the employee had been reporting to him for more than 10 years and was aware of the rules and misuse of vehicles, a topic which had repeatedly been taken up with staff.

[15]	He expected better of the employee and found it very problematic that he had left the vehicle unattended for so long. The employer viewed such transgressions in a serious light and in most instances would dismiss employees for similar behaviour.

[16]	He conceded during cross-examination that he relied on information provided to him by others who were directly involved in the incident, and he was aware that the keys went missing during a scuffle between Ngcukana and the employee. He could not add anything further regarding the telephone discussion between May and Ndabambi, and he did not interview May during his investigation.

[17]	It was his view that the employee should receive a final written warning, but this was because he and the employee had worked together for a long time, and he felt sympathetic towards the employee.

The Employee’s case

[18]	.Ngcukana testified that after work on 14 October 2018 he discovered that his phone was missing. When he and the employee met later that night they argued about the phone. A scuffle ensued and the bakkie keys fell under the vehicle. He approached the employee with a screwdriver but May intervened. When May asked for the keys Ngcukana said, ‘no phone no keys’.

[19]	Later that evening he was contacted by Ndabambi at around 22h00. She asked 

[20]	him to check on the bakkie. He testified that Ndabambi told him that May had called her to tell her the bakkie was standing at Chisana’s place. Ngcukana drove to the bakkie and saw May. He found the keys under the bakkie and drove it back to the depot. When he returned to his car (parked where the bakkie had been) there was no one there. His opinion was that the vehicle was safe where it was parked.

[21]	Under cross-examination he conceded that he could not explain his failure to inform Ndabambi of the scuffle between himself and the employee. He admitted that his statement given after the incident does not concur with that of the employee’s version of events. He said the keys had fallen under the bakkie whereas the employee said that he had taken the keys. He conceded that the employee should have contacted Ndabambi. He confirmed that he broke open the bakkie and took tools as a ransom for his phone. He could not explain his previous statement in this regard, namely, that when he went to the bakkie the backdoor was already broken. He conceded that the employee was negligent in leaving the vehicle at the location in question.

[22]	In his view, he and not the employee should be blamed. Had there not been a scuffle the employee would never have been dismissed.

[23]	Mzukisi Tshali (‘Tshali’) testified that he was the employee’s assistant and on the day in question he finished work at 18h00. The employee was going to drop him off at home, but they had to make a detour to Chisana’s place to get his house keys. On route, Ngcukana called him asking about his missing cell phone. He searched the bakkie but could not find it. They agreed to meet at May’s place which was near Chisana’s Place. They arrived to find Ngcukana already there. The aforementioned argument ensued. When they wanted to leave the employee could not find the bakkie keys and he (Tshali) told the employee that they should wait for half-an-hour until Ngcukana returned. When he did return Ngcukana again asked about his phone, and said ‘no phone no keys’. Tshali went to May’s house to ask him to assist but even with May’s intervention they could not get the bakkie keys from Ngcukana. That is when Ngcukana went to his bakkie and got the screwdriver. May intervened and Ngcukana left.

[24]	By then it was close to midnight and he asked May to assist the employee to contact Ndabambi to inform her of the situation. May and the employee went into May’s house. Ngcukana then emerged from an alley and Tshali went into May’s house to tell them that Ngcukana was back. Ngcukana started the bakkie and drove off with it. Tshali asked May whether they had called Ndabambi and May said they had.

[25]	During cross-examination Tshali said he did not know how the vehicle report worked. He added that he was the one who had locked the bakkie and therewith the radio inside the bakkie which is why they had to ask May to call Ndabambi.

[26]	Lulama Patrick May (‘May’) testified that he was at home when Tshali came to him and informed him about an incident between the employee and Ngcukana. He tried to intervene after Ngcukana got a screwdriver from his car, and it became apparent that the argument was about Ngcukana’s phone. The employee was looking for the keys of the bakkie and Ngcukana said ‘no phone no keys’.

[27]	The employee then asked him to call Ndabambi which he did. He informed her that Ngcukana had the keys and asked Ndabambi to call him to return the keys. She did so and confirmed by way of a further call to May that Ngcukana was on the way back to the bakkie, and that she had asked May to stay with the bakkie until Ngcukana got there.

[28]	He testified that he was sitting inside his car in his yard with the employee with the bakkie in view. After 23h00 he and the employee went into May’s house and when they came back out the bakkie was gone, taken by Ngcukana. He was informed of this by his brother. He then took the employee home.

[29]	He testified that it was him that called Ndabambi (not the other way round). He was never asked for a statement concerning the incident. He testified that because the bakkie was never left unattended the employee was not guilty of gross negligence.

[30]	During cross-examination he could not recall the time of the altercation between the employee and Ngcukana and he was unsure how long he and the employee sat in his car before going inside. He testified that he called Ndabambi about 30 minutes after he intervened in the altercation, which meant he would have called her before 21h00. Ngcukana only arrived back after 23h00.

[31]	The employee, Mzwandile Sizani,   testified that he had started as an apprentice at the City in 2001. He confirmed that he had given Tshali a lift home, which entailed the detour to Chisana’s Place. When they arrived, Ngcukana was already there, and approached them angrily, saying he was looking for his phone. He accused the employee of stealing his phone and got physical with him. Tshali intervened and called May. Ngcukana went to his own bakkie and returned with a screwdriver. Ngcukana assaulted him. May intervened and discovered that the bakkie’s keys were gone. He asked Ngcukana for the keys and the response was ‘no phone no keys’. Ngcukana then left and May and the employee went to May’s house. May then called Ngcukana and Ndabambi and they told Tshali to look after the bakkie in the meantime. Ndabambi confirmed that Ngcukana was on his way back. Tshali came in and said he had seen Ngcukana in a side road.

[32]	The employee further testified that he was traumatised by the incident. As he got outside, he heard the bakkie start and he then asked May to take him home.

[33]	The next day at the depot he checked on the bakkie and discovered that the lock at the back was broken and there was a problem with the wheel. 

[34]	Tayo told him to report the matter to the matter to the police. He decided not to do so because Ngcukana said he was responsible, and so he did not report the incident.

[35]	He said that Tayo, as the initiator at his disciplinary hearing, was of the view that a final written warning would be an appropriate sanction

[36]	He said that Ndabambi was lying and the cousin she was referring to was May (because his nickname Mzala translates into ‘cousin’ in Xhosa). He disagreed that the place was dangerous as alleged by Ndabambi.

[37]	He agreed under cross-examination that he cannot simply do what he wants with the City’s assets. He was asked why he never thought of radioing Ndabambi to tell her of the situation and he responded by saying it did not cross his mind because they were waiting for the keys. He testified that he did not have a cell phone with him on the day. 

[38]	He conceded that his statement given after the incident and his version at arbitration didn’t match up. When he was asked why he didn’t call Ndabambi himself he said that she should have called him because she was the supervisor. He could not say how long the bakkie had stood outside for, or how late it was when it was driven back. He denied leaving the scene before Ngcukana drove the bakkie back to the depot.

Analysis and evaluation

[39]	As the Commissioner correctly noted, there was not much that was common cause.

[40]	What the parties agree on is that the incident in question occurred on 14 October 2018 and that the employee was the driver of the bakkie that became the subject matter of the dispute. What is further common cause is that on the night in question, the employee never spoke to Ndabambi. This is of some import, given that on Ndabambi’s version, had the employee reported the matter and spoken to her personally, there would not have been an issue. 

[41]	In this regard, it was never properly explained by the employee, why, when May was speaking to Ndabambi, he (the employee) could not simply have taken the phone from May, and reported on the issue himself. I am constrained to disagree with counsel for the applicant that submitted that this was of no moment. It suggests that the employee did not want to face his supervisor. But this in itself does not establish his guilt.

[42]	As counsel for the applicant argued, what else should the employee have done, given that it was common cause that he was assaulted by Ngcukana, and was afraid. 

[43]	In this regard, the gravamen of the dismissal related to whether the employee had stayed at the scene where the bakkie was parked, or left as the employer claims, and was still absent when Ngcukana collected the vehicle (in other words, during this time there was no threat from Ngcukana). This was a factual enquiry.

[44]	The Commissioner had to make a decision when presented with two mutually destructive versions of events. In doing so, the question is whether he applied the correct legal principles when determining disputes of fact arising out contradictory oral evidence.

[45]	Simply put, the employee claimed he never left the vehicle unattended, whereas the employer contended otherwise. That this was correctly identified as the nub of the issue is apparent from the Award para 56 where the Commissioner says it is critical to determine whether the employee had left the scene where the vehicle was parked and whether he was still absent when Ngcukana returned and collected the vehicle before dropping it off at the depot.

[46]	It cannot therefore be said that the Commissioner misdirected himself as to the nature of the enquiry before him, nor did I understand counsel for the applicant to contend otherwise. Instead, as I understood the argument, it was that the employee did what he could under the circumstances. Which brings me back to the disputed facts, and how the Commissioner dealt with this issue.

[47]	The correct approach to resolving disputes of fact in oral evidence was set out in the well-known case of Stellenbosch Farmers’ Winery Group Ltd. and Another v Martell & Cie SA and Others 2003 (1) SA 11 (SCA), where Nienaber JA provided guidelines for determining a) the credibility of the factual witness, b) their reliability; and c) the probabilities. 

[48]	In coming to his decision, the Commissioner considered a number of factors.
48.1.	There was no basis laid by the employee for challenging the vehicle movement report and he accepted it was parked near Chisana’s and May’s residence between 20h03 and 23h24.
48.2.	The Commissioner analysed the dispute as to the times the various phone calls were made and was satisfied that Ndabambi’s evidence was corroborated by that of Ngcukana as it related to the call between them of 22h00. In doing so he rejected as improbable the version of Tshali as wholly unreliable and his evidence therewith that the call was closer to midnight because by that time the bakkie had already been removed by Ngcukana.
48.3.	He therefore concluded that Ndabambi’s evidence was more probable, as it seemed too far-fetched for her to fabricate a story, and unlikely that she was confused as to whom she spoke to. There was also no basis laid for why she would make up a version (the transcribed record reflects that the employee and his witnesses merely said she was ‘lying’ without saying why she would do so).
48.4.	The Commissioner found it strange that the employee never spoke to Ndabambi during the course of the evening. No good reason was provided for why (even if one accepts that May had called Ndabambi), the employee did not speak to Ndabambi personally. As the Commissioner notes, there was no need for May to be the middleman as the employee would have been on the scene.
48.5.	The Commissioner further noted the perplexing nature of Tshali’s evidence relating to the whereabouts of the employee’s cell phone – Tshali was the only witness that testified that the employees radio and cell phone was mistakenly locked in the bakkie. By contrast, the employee testified that he never had his cell phone on him during the day in question.
48.6.	Importantly, the Commissioner notes that Ngcukana’s evidence was that when he arrived at the scene the second time, the employee was not there, and this was why it was necessary for Ngcukana to drive the bakkie back to the depot. 
48.7.	The Commissioner, in coming to this conclusion, rejected the truthfulness of the versions of May and the employee that they variously sat in May’s car or inside his house, and this version was constructed to create the impression that the employee was there when he was not.

[49]	The credibility of witnesses is at issue in this matter. I should perhaps mention that this Court sitting, as a court of review, does not have the benefit of seeing and hearing the oral evidence, observing the witness, and making assessments as to their demeanour. Though often a matter which comes up in appeal courts, there is no reason why the same principle does not apply in a review in the Labour Court where the Court similarly does not have the benefit of observing the witnesses. As articulated by the Appellate Division (as it then was) In R v Dhlumayo & Another 1948 (2) SA 677 (A) at 705-706
“The trial court has advantages which the appellate court cannot have – in seeing and hearing the witnesses and in being steeped in the atmosphere of the trial. Not only has the trial court had the opportunity of observing their demeanour, but also their appearance and whole personality. This should never be overlooked. The mere fact that the trial court has not commented on the demeanour of the witnesses can hardly ever place the appeal court in as good a position as it was. Even in drawing inferences the trial court may be in a better position than the appellate court, in that it may be more able to estimate what is probable or improbable in relation to the particular people whom it has observed at the trial...The appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial court.   Where the appellate court is constrained to decide the case purely on the record, the question of onus becomes all-important. In order to succeed, the appellant has to satisfy an appellate court that there has been ‘some miscarriage of justice or violation of some principle of law or procedure”.

[50]	I cannot find a miscarriage of justice or a violation of some principle of law or procedure, sufficient to set aside the credibility finding of the Commissioner, and along with it his finding that the employer’s version of events must preferred on the disputed facts. 

[51]	He resolved the dispute of fact in favour of the employer’s witnesses after weighing the reliability and inherent probabilities of the various conflicting versions of the witnesses. In my view the Commissioner cannot be faulted in the manner in which he conducted this exercise. 

[52]	This led to a reasonable conclusion that the employee had breached a workplace rule.

[53]	If one applies the Sidumo test, the Commissioner cannot be said to have reached a decision no reasonable decision-maker could have reached on the facts that served before him. 

[54]	I must therefore conclude that the issue of guilt was reasonably decided by the Commissioner, and cannot be disturbed on review.

[55]	 In deciding on sanction, the Commissioner again carefully considered all the relevant factors, and in concluding that a dismissal was appropriate in the circumstances he had regard to the fact that the employee was entrusted to exercise diligence over the asset his employer had entrusted him with. The asset (the bakkie) was essential for service delivery for the employer, and its loss or damage could affect this.

[56]	I should perhaps mention that I had regard to the employee’s supervisor for 10 years (Tayo) testifying that he thought the employee should only receive a final written warning. However, this appears to have been more out of sympathy than anything else, for as Tayo testified, he ‘felt’ for the employee.

[57]	The Commissioner further pointed out that irrespective of the events of the evening, there were various options open to the employee, one of which was to personally inform Ndabambi of the state of affairs, and if needs be arrange for a spare set of keys to take custody of the vehicle and park it in a safe place (a solution as testified to by Ndabambi). Instead, as the Commissioner noted, the employee was prepared to take a risk because he did not want to take his supervisor into his confidence as to what had transpired.

[58]	The Commissioner then applied his mind to the case law applicable to gross negligence, before coming to the conclusion that there was an element of conscious risk taking by the employee when he failed to take measures to safeguard the asset.

[59]	In short, he had options available to him, options he was aware of and could exercise, and failed to do so. This shows that he cannot be trusted; he put his own interests above that of his employee. 

[60]	I therefore conclude that the decision of the Commissioner is not reviewable and the dismissal of the employee was substantively fair

Order:
1.	The application is dismissed.

2.	There is no order as to costs.

Lourens Ackermann
Acting Judge of the Labour Court of South Africa

Appearances:
For the applicant: 		 E Geldenhuys of Macgregor Erasmus Attorneys
For the First Respondent: 	 Adv Carlo Carolissen instructed by Regan Brown Inc.