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REPUBLIC OF SOUTH AFRICA

Of Interest to Other Judges

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

Case no: J 1081/11

In the matter between:

SOUTH AFRICAN TRANSPORT AND ALLIED

WORKERS UNION (“SATAWU”)................................................................................First Applicant

E SEIMELA & 26 OTHERS.......................................................Second to Twenty Eighth Applicants

and

RAM TRANSPORT SOUTH AFRICA (PTY) LTD...........................................................Respondent

Heard: 5, 6, 7 March and 19, 20 and 21 June 2013.

Delivered: 26 November 2014

Summary: (Unprotected strike- dismissal for picketing misconduct).

JUDGMENT

LAGRANGE, J

Introduction

[1] This matter concerns the alleged unfair dismissal of 27 employees of the respondent in February 2011, following their participation in an unprotected strike which took place from 25 to 29 January that year. The strike came to an end when this court issued an interdict on Saturday 29 January amongst other things declaring the strike unprotected. The 27 individual applicants are seeking reinstatement.

[2] They were part of a group of approximately 135 employees who participated in the strike. Of that number, approximately 123 were charged with a panoply of various acts of misconduct relating to the strike action and appeared in a collective disciplinary enquiry. The charges against them were as follows:

“2. PARTICIPATION IN UNPROTECTED ACTION

You have for the period commencing Tuesday 25 January 2011 until Saturday 29 January 2011 ("Strike Period') despite several ultimatums having being issued, participated in an unprotected and unlawful strike ("Unprotected and Unlawful strike”) in contravention of-

2.1 the Labour Relations Act 66 of 1995 ("LRA”) and

2.2 your Service Agreement incorporating your terms and conditions of employment ("Service Agreement');

2.3 Ram's Code of Conduct

3. INTIMIDATION AND ABUSIVE LANGUAGE

In breach of the LRA, your service agreement, RAM's code of conduct and in contravention of a Court Order issued on the 26 January 2011 in the Labour Court of South Africa held at Johannesburg under case number J1065/2011 ("26 January 2011 Order”) you have-

3. 1. intimidated and threatened non-striking employees, alternatively incited other striking employees to intimidate and/or threaten non-striking employees;

3.2. used abusive or obscene language or gestures towards non-striking employees and/or third parties while representing the company, alternatively incited other striking employees to do so;

3.3. displayed placards outside the RAM Group's premises with words that were offensive to other employees, and/or class of employees, alternatively incited other employees to do so.

4. DAMAGE TO PROPERTY

In contravention of the LRA, your service agreement, RAM's Code of conduct  and the 26th  January 2011 Court order, you have caused damage to RAM property and the property of fellow employees, alternatively incited other striking employees to do so and/ or were present when other striking employees damaged such property.

5. INTERFERING WITH LAWFUL BUSINESS OPERATIONS OF RAM

5. 1 In contravention of your Service agreement, RAM's Code of conduct and the 26th January 2011 Order you have-

5.1.1. interfered with the lawful conduct of RAM's business operations; and/or

5.1.2 incited striking employees to interfere with the lawful conduct of RAM's business operations, in that you have-

5.1.2.1. prevented and/or delayed RAM vehicles from moving freely into and out of the various RAM premises in Wrench Road;

5.1.2.1. threatened and/ or intimidated third party and/or contract couriers from reporting to RAM premises in order to fulfil their operational duties.

6. FAILURE TO ACT

Despite written notice, you failed, alternatively neglected, alternatively refused to-

6.1. protect the safety of non-striking fellow employees;

6.2. report to RAM any incidents of misconduct you observed protected and Unlawful strike, including intimidation and damage to property that you observed during the Unprotected and Unlawful strike.

7. BRINGING THE COMPANY'S NAME INTO DISREPUTE

7.1. Despite receipt of the 26th January 2011 Order and despite written notice-

7. 1. 1. you have failed, alternatively neglected, alternatively refused to behave respectfully towards your fellow employees and/or your employer and/or members of the public in that, you blockaded the road making it impossible for innocent bystanders and RAM vehicles  to pass;

7.2. In contravention of RAM's Uniform Policy you hung up RAM uniforms  on fences  in the public areas thereby bringing the name of RAM into disrepute.”

[3] They all received final written warnings after pleading guilty to charge 2 (participating in an unprotected strike) and ‘guilty by association’ with the group in respect of charges 3 (Intimidation and use of abusive language), 4 (damage to property), 5 (interference with the business), 6 (failing to act) and 7 (bringing the company into disrepute), during the course of the enquiry. These employees received final written warnings but some were dismissed depending on their disciplinary records.

[4] However, the employer was not prepared to accept pleas of guilt by association in respect of the individual applicants relating to charges 3 to 7 and proceeded with the enquiry in order to prove they were personally involved in such acts of misconduct.

[5] An additional charge of insubordination was laid against The first applicant's two shop-stewards, Themba Tshabalala[1] (‘Tshabalala’) and Anderson Timakwe (Timakwe) in the following terms:

"8. INSUBORDINATION

8.1. despite being on paid suspension and despite a lawful and …?reasonable instruction from your manager, Lulu Pretorius on 1 February 2011 to present yourself at your work place, you refused to report to RAM-

8.2. and arrive on the date and time as stipulated on 1 February 2011 (namely 16:00 on 1 February 2011;

8.3. at O8hOO on 2 February 2011 and, only after 2 short message service (SMS) notifications  did you report at about 10:30."

[6] Following the conclusion of the enquiry, the chairperson arrived at the following findings in respect of the individual applicants:

6.1 their pleas of guilty in respect of charge 2 (participation in unprotected strike action) were accepted;

6.2 all except Komanisi were found guilty of intimidation and abusive language (charge 3);

6.3 all were found guilty by association with the group as per their plea on charge 4 (concerning damage to property);

6.4 all of the group except Komanisi and Dumisani Twala were found guilty on charge 5 (unlawful interference with the business)

6.5 On charges 6 (failing to act) and 7 (bringing disrepute) all of their pleas of guilt by association with the group were accepted.

[7] Tshabalala was also found guilty of insubordination and an agreement was reached with Timakwe in terms of which he pleaded to being guilty by association to charges 2 to 7 inclusive, but was found not guilty of insubordination.

[8] All of the group were dismissed except for Komanisi, who was given a final written warning.

[9] The individual applicants are:

9.1 Applicant 2                    Ernest Seimela

9.2 Applicant 3                     Titus Maabane

9.3 Applicant 4                     Tebogo Tholo

9.4 Applicant 5                    Frans Monene

9.5 Applicant 6                     Welcome Kunene

9.6 Applicant 7                        Isaac Mashiloane

9.7 Applicant 8                      Agrippa Ndlela

9.8 Applicant 9                      Africa Mogane

9.9 Applicant 10                     Robert Ndou

9.10 Applicant 11                   Given Vuma

9.11 Applicant 12                   Samuel Mkhonza

9.12 Applicant 13                     Samuel Tshabalala

9.13 Applicant 14                     Dumisani Twala

9.14 Applicant 15                     Jackson Ditire

9.15 Applicant16                     Ben Vuma

9.16 Applicant17                    Templeton Bontshi

9.17 Applicant 18                     Luckford Zide

9.18 Applicant 19                     Brian Thabethe

9.19 Applicant 20                     Isaac Sefoka

9.20 Applicant 21                   Lesiba Moloto

9.21 Applicant 22                     Regwell Ramuhala

9.22 Applicant 23                     Abel Moloi

9.23 Applicant 24                   Ryan Kobapshiri

9.24 Applicant 25                     Abel Gabohewe

9.25 Applicant 26                   John Mphahlele

9.26 Applicant 27                     Abel Nhlapo

9.27 Applicant 28                   Themba Tshabalala

By the time the trial commenced, Mogane had regrettably passed away.

[10] At the commencement of the trial the employer disavowed any reliance on the applicants participation in the unprotected strike and emphasised three aspects of their alleged misconduct for which they were dismissed, namely:

10.1 blockading the road running in front of the employer’s premises;

10.2 preventing non-strikers and replacement employees from coming to work, and

10.3 harassing and intimidating non-strikers and replacement workers.

[11] Essentially, the employer sought to prove that the individual applicants had been involved in acts of harassment or intimidation of non-strikers and replacement workers and that, they had unlawfully interfered with its business by preventing them from coming to work and in blockading the road.

[12] At a pre-trial conference on 17 August 2011, the legal representatives of the parties agreed that this Honourable Court was required to determine the following issues:

12.1 Whether the individual applicants changed their plea to guilty and guilty by association with the group;

12.2 Whether the representatives of the employees in the collective disciplinary enquiry had agreed with RAM that the employees who had so changed their plea be issued with final written warnings depending on their prior disciplinary record;

12.3 Whether RAM was justified in dismissing the individual applicants;

12.4 Whether RAM was justified in dismissing the twenty-eighth applicant based on the outcome of his individual disciplinary enquiry;

12.5 Whether RAM was inconsistent in its dealings with striking employees;

12.6 Whether the individual applicants were selectively dismissed on the basis that they had allegedly made themselves guilty of misconduct other than participating in unprotected strike action;

12.7 Whether the individual applicants had indeed committed acts of misconduct other than engaging in unprotected strike action;

12.8 Whether the penalty of dismissal was too harsh in all the circumstances;

12.9 Whether the twenty-eighth applicant was singled out and whether he was victimised for conducting himself as a shop steward of SATAWU

12.10 Whether the disciplinary enquiries of the individual applicants were procedurally fair or whether they were conducted on an ad hoc basis;

12.11 Whether charges were being withdrawn and reinstated during the disciplinary enquiries without there being proper notice thereof and without any consideration for fair procedure

As the proceedings unfolded it became apparent that the real issues in dispute were primarily those set out in paragraphs 12.3 to 12.8 (inclusive) and paragraphs 12.10 and 12.11

[13] The trial took place over six days and was split into two sessions a couple of months apart. After the third day of proceedings, the matter was postponed to allow the parties to examine further evidence and try and explore a settlement, but the trial resumed on 18 June. When the hearing resumed, additional video footage relating to the activities of strikers in front of the main gate, the pushing and shoving of a pedestrian (apparently a suspected strike-breaker) and the discarding of ultimatums were viewed as part of the evidence. Schutte

[14] The respondent called seven witnesses to testify on its behalf: Alan da Costa (Da Costa) the respondent's director; D du Toit, who is employed by the respondent in its investigative department and anti-hijacking;  Schutte, the respondent's Security and Risk Manager; Sean Wayne Ahmed  (Ahmed) the respondent's National Security officer, who was Head of Operations at the time of the strike; Moeketsi Silus Chiloane (Chiloane),  the  respondent's Operations Supervisor; Frans Madumeja Sebetha  (Sebetha), the respondent's Human Resources Operator and Linda Erasmus (Erasmus), one of the  Chairpersons of the  individual applicants' disciplinary enquiry.

[15] The applicants called ten witnesses to testify: Tebogo  Tholo  (Tholo, Applicant  4);  Frans Monene (Monene, Applicant 5); Isaac Mashiloane (Mashiloane, Applicant 7); Agrippa Ndlela (Ndlele, Applicant 8); Samuel Tshabalala (Tshabalala,  Applicant   13);  Brian Thabethe   (Thabethe, Applicant  19); Regwell Ramuhala (Ramuhala, Applicant 22), Abel Moloi (Moloi,  Applicant  23);  Abel  Gabohewe  (Gaohewe, Applicant  25)  and Themba Tshabalala (Tshabalala, Applicant 28). It appears that the applicants intended to call Given Mvuma (G Mvuma, Applicant 11) but regrettably he was apparently arrested near the court before he could testify, for reasons unknown to the court.

[16] A numberexcerpts of video footage from security cameras at the respondent’s premises were also viewed during the course of the hearing, accompanied by testimony of various witnesses. The titles of the excerpts shown were ‘Stopping 1’, ‘Frans 1’, ‘Frans 2’, ‘Road Closer’ ‘Firearm 1’, ‘Given 1’, ‘Jackson1’, ‘Jackson 2’, ‘Jackson 3’, ‘Jackson 4’,’Robert 1’ and ‘Tebogo 1’.

[17] The court is grateful to the parties for making a transcript of the proceedings available.

Overview of the evidence

Introductory and background matters

[18] Alan Da Costa(‘Da Costa’ a shareholder and director of the company, gave background evidence about the respondent company and the nature of its courier business catering for the needs of clients requiring the secure delivery of small items of high value such as jewellery, diamonds and, more recently, cell phones. All of the deliveries are done by the respondent itself using its own staff and vehicles and no subcontractors are used. A few contract staff were used to assist with the occasional peak periods.

[19] The business fall within the scope of the National Bargaining Council for the Road Freight and Logistics Industry and the respondent paid its employees a premium of between 15 to 20% above the minimum wages set by the Council. Although he was not a witness to any of the alleged misconduct which took place during the strike he was able to comment on the impact of the strike on the business. He pointed out that unlike most courier companies they had long term clients such as Vodacom, Cell C, Incredible Connection and the Foschini Group. The respondent had service level agreements with all of these clients setting performance standards. If those standards were not met the contract could be jeopardised. A hallmark of the company’s service was that no item to be delivered left the respondent’s hands between receipt of the item and its final delivery, in the sense that no intermediaries were used in the process. Consequently, if their own vehicles could not leave their distribution hub, deliveries could not take place. At the time of the strike, Vodacom accounted for a significant portion of its business, and it was with evident dismay that he referred to a letter apparently signed by the provincial chairperson of the union calling on Vodacom to engage with its office bearers to avoid “a possible consumer boycott” against it and the respondent. According to the letter this initiative of the union stemmed from a resolution of the strikers. Had the Vodacom contract been lost, vast retrenchments would have ensued.

[20] Da Costa also emphasised that given the premium wages which they paid and the fact that they were an employer of choice in the sector, made it difficult to accept that the company could continue employment relationships with persons found guilty of some of the misconduct complained off.

[21] He agreed however that the company’s employees had the right to strike and picket peacefully in terms of the law. He confirmed that he did see strikers stopping vehicles leaving the hub because it was near the boardroom window where they could see into the street that people who entered the street were stopped. In his understanding, that went beyond what they were entitled to do when picketing because there was an empty area opposite the hub entrance where strikers could have picketed and assembled but they had chosen to come up to the entrance where the vehicles left and were stopping them from going out to do their deliveries. Police were called in by the security personnel after incidence of damage done to certain individuals’ vehicles, but he could not say which persons were responsible for that.

[22] He also agreed that approximately 100 employees initially accused of participating in the strike and prohibiting company from continuing with its work were simply given a final written warning and allowed to return to work. The reason this was done he said was on legal advice that, that is what should be done in the absence of specific evidence of misconduct committed by those employees during the strike. The only persons who are dismissed with those who had committed other acts prohibited by the court interdict

[23] Da Costa also clarified that the normal procedure was that when each vehicle left a RAM distribution hub, it would have a minimum of two employees in it. Sometimes, there would be three individuals in the vehicle. One person must remain with the vehicle while the others were making deliveries. If they could not take on sufficient crew to perform these duties it compromised their performance in terms of their service level agreements and their reputation.

[24] Under cross-examination, Da Costa agreed that the union had opposed the interdict on the basis that it believed the company had unilaterally altered working terms and conditions, but he pointed out that the company had informed the strikers on numerous occasions that the strike was unprotected. He did concede that the strikers at the time had said they would not report for duty because they were adamant they were participating in a lawful strike. The vast majority of the employers’ 2500 employees did not go out on strike because the process of discussing a change in the shifts had been discussed with them. He agreed that the firm did not recognise the union because there was a dispute over the validity of certain membership forms submitted by the union. He also conceded that an award concerning organisational rights had been made in the union’s favour by the CCMA but the firm had taken that award on review.

[25] Ahmed testified that on 25 January 2011, the first day of the strike, he contacted two labour broker firms namely Kelly and Mpumelelo asking for 60 additional temporary staff so that they would be covered the next day. The following day he was phoned by the responsible person at Mpumelelo, who told him that some of his personnel had been intimidated and were no longer going to the deployment area. He also told him that the entrance to RAM3 was being blockaded by RAM personnel, who were preventing them from getting onto the delivery vehicles at RAM2 after they had been brought there from RAM1. He explained that the distribution centre is at RAM1 and no temporary workers are allowed inside there. The vehicles would then leave the distribution centre to go to RAM3 to collect the temporary workers who would be inside the premises to avoid a chaotic situation outside. Once a vehicle arrived the relevant temporary worker would leave the premises at RAM3 and board the vehicle.  He then phoned Schutte and asked him to send more security personnel to RAM3 which is where the temporary workers were deployed from. He had been advised by Mpumelelo that some of the staff were waiting at a petrol station around the corner and he asked Sebetha to assist in collecting them. Later in the morning he was phoned by Schutte who advised him that the situation at RAM3 was still chaotic and some vehicles doing face-to-face deliveries for individuals had to be dispatched without partners. Vehicles doing retail deliveries to outlets had to return so that the driver could be accompanied by a permanent employee. A number of deliveries had to be cancelled so that deliveries were down to about 65 % of normal levels. There was no cross-examination of Ahmed, but an objection was raised during the course of his examination that his evidence was hearsay in relation to what he was informed by the representative of Mpumelelo. The evidence was provisionally admitted, subject to a final ruling on its admissibility. In so far as he gave instructions to deal with a reported problem with driver’s assistants boarding vehicles at RAM3, that is not hearsay as such but tends to support other evidence that there was such a problem. Understood in that context, there was no reason not to admit it.

[26] Ahmed was not asked about his interaction with SATAWU or Tshabalala before the strike commenced. Tshabalala testified however that the strike began essentially because there was a change in shift times which SA said had been discussed with the recognised union known as MTW, but not with SATAWU. The SATAWU members viewed it as a unilateral change which justified the strike once management did not respond to a written ultimatum from the union. Although management witnesses were not asked if they had raised any complaints about the conduct of strikers with the union or shop stewards, Tshabalala gave evidence that no complaints had been raised with him. He speculated that no complaints were raised because the company wanted to build a strong case against them, and when it was put to him that the company could have dismissed everyone for participating in an unprotected strike, he said that all the strikers had faced the same charges. He agreed that two of the five SATAWU shop stewards were not dismissed.  He did agree also that he was not present at all times during the strike because he was sometimes talking with management or police, so things like Ditire making throat cutting gestures might have taken place at those times.

The disciplinary proceedings

[27] The company called Erasmus to testify about the conduct of the disciplinary proceedings. She, together with a Mr Durant, had been one of the joint chairpersons of the enquiry. Erasmus explained the course of events during the enquiry, starting with their opening introduction in which the process was explained. All of the 123 employees charged initially pleaded not guilty to all the charges. It was common cause that the strike had been declared unlawful, that they had all participated in it, that ultimatums had been issued and completely ignored. The main charges on which evidence was led were charges 3 and 5, relating to intimidation and interference with the lawful business operations of the company. The reason evidence was focused on these charges was because the employees pleaded guilty by association to the other charges. It was after the introduction of video evidence on the second day of the enquiry that the employee representatives indicated that they wanted to change their pleas to guilt by association and were willing to accept final written warnings in respect of each of the charges.

[28] The employer was only willing to agree to that in respect of some of the employees and insisted on proceeding against the 28 individual applicants. As far as she recalled all the other employees received final written warnings as agreed. The hearing then proceeded in respect of the remaining 28 strikers, with the company continuing to lead evidence which it had already commenced before the plea bargain agreement. Erasmus also testified that it had been agreed the employees would be represented by 5 individuals, and a number of the applicants did not attend, but they could have sat in the hearing if they had wanted to.

[29] Schutte and du Toit both gave further evidence and approximately 4 pieces of video evidence were shown during which individuals appearing in the videos were identified. In particular, applicants 02, Maabane, Manene, Kunene, Ndlela, Mogane, Ndou, G Vuma, B Vuma, Zide, Moloi, Kobapshiri, Gabohewe,Mphahlele and Tshabalalanames appeared on a list produced by a Mr Pienaar who had been given secret testimony by a witness who was allegedly too afraid to give evidence at the enquiry. They were identified as being part of the group moving towards the delivery van, which is described in paragraphs [108] to [110] below. Similarly, other applicants and strikers were identified in the three other videos shown. It is apparent that other individuals, apart from the applicants, were also identified. Thus, TshabalalaTshabalala and Bontshi were identified in the video evidence dealt with more fully below at paragraphs [59] to [62] (‘Frans 1’). Likewise, Kobapshiri and Maabane were identified as being involved in another incident in which strikers engaged with a car carrying replacement workers described in  paragraphs  [53] to [58]  (‘Frans 2). Apart from that, du Toit and Schutte in the course of the enquiry identified 10 applicants between them. The persons they identified were applicants Tholo, Mashiloane,Ndou, Twala, Ditire, Thabethe, Ramahula, Moloi, Gabohewe and Nhlapho. Under cross-examination, it became apparent that the chairpersons relied on both the hearsay evidence and the oral testimony of du Toit, and Schutte and Anderson in arriving at their findings. Of those ‘identified’ by the secret witness, only three applicants were also identified in oral testimony at the enquiry namely Ndou, Moloie and Gabohewe. From the notes of the chairpersons neither Bontshi’s nor Mkhonza’s names were mentioned. Erasmus confirmed that the lists of persons identified in the hearsay evidence of Pienaar were presented to the employee representatives and they did not dispute those persons were participating.

[30] On the evidence presented they came to the conclusion that there was intimidation taking place and business operations were being disrupted. Further, the evidence was not significantly challenged under cross-examination according to her notes. Erasmus said that the employee representatives were reluctant to engage with the video evidence, even to the point of not being willing to watch it and failed to put any version forward to challenge what they did not agree with, despite her warning them of the need to do so more than once.

[31] Erasmus also confirmed that at a late stage in the hearing, the company added Mashiloane to the list of the remaining individuals facing charges on the basis that he had been implicated during that day’s testimony of being guilty of intimidation and the evidence against him had not been contested. Komanisi had been given a final warning because there was nothing implicating him directly in being involved in charges 3 and 5. She insisted that it was agreed with the five representatives of employees that Mashiloane could be added to the list. Her notes seemed to support there was a discussion and agreement but that the employee representatives had not been willing to admit any additional names the employer might come with afterwards. Erasmus’s attitude was that since the representatives agreed it was acceptable that Mashiloane was added at the end of the enquiry, even though he had not been identified as someone facing charges at the beginning of it. At no stage while this interaction between the chairpersons and the employee representatives was Mashiloane present. Mashiloane testified that the first time he heard of being charged with intimidatory conduct was when he received his notice of dismissal and he denied being guilty of such, in any event.

[32] Once the employer closed its case the employee representatives declined to lead evidence despite being warned of the dangers of not doing so. They said that the applicants did not want to testify, but just wanted a ruling.

Evidence relating to the conduct of individual applicants

The incidents in which individuals were allegedly involved

[33] There were certain identifiable events during the strike in which the specific misconduct the individual applicants were charged with arose. These were:

33.1 the closure  of Wrench  Road on 26 January  2011;

33.2 the alleged intimidation   of replacement   labour  at the  entrance RAM3 on 26 January  2011 and two incidents involving Frans  Sebetha.

[34] Apart from these events there were alleged acts of the   intimidation   of drivers of RAM delivery   vehicles   during the strike, and miscellaneous   incident  of misconduct   during  the strike.

[35] Du Toit said that he was present through the strike and was sitting at the front of the main gates to ensure that vehicles could leave without problems or intimidation. His function during the strike was to monitor the strike together with Schutte. He indicated that, in the normal course of his work dealing with hijacking incidents he would be called to respond to any incidence involving the vehicles panic buttons or something which happened on the road. He would then follow up with an investigation, make arrests and gather information.  He had been working at the respondent for two years at the time of the strike and although he did not know which departments the applicants worked in, he interacted with them on previous occasions in the course of his work. He conceded he did not know all of the employees who had participated in the strike, but he knew those he had interacted with by their first names and was able to relate brief details of those previous interactions. He was accused of singling out people amongst the strikers on the basis of the previous difficulties he had encountered with them in the course of his work and it was a way of getting rid of troublemakers. Du Toit rejected this saying that the persons identified had been identified by himself and Mr Schutte when viewing the video evidence, based on their misconduct during the strike. He readily conceded that there were other persons who might also have been guilty of misconduct during the strike but he could not identify them though other managers were asked to identify perpetrators.

[36] Late in his cross-examination it emerged that, two weeks before the trial for the purpose of preparation du Toit had tried to obtain the ‘log book’ or occurrence book that should have been maintained by the security control room during the strike. He was told by Mr G Langeveldt, the Security Control Room manager, that it had been archived. Du Toit did not follow up with Langeveldt on his request even though Langveldt said he would get back to him. It was suggested that there was no log book because initially he stated it could not be located and then said Langeveldt had not come back to him.

Obstruction of Wrench Road on 26 January 2011

[37] In relation to the blockage of Wrench Road, du Doit commenting on video footage identified four individual applicants placing bricks, rocks and other debris in a rough line across the road. He further confirmed that the road gave access to Industria Road and ultimately to the R21 highway. Tshabalala testified that the rocks had been placed under the tape which the police had used to close of the road, and could not explain why strikers put rocks there if the road was already closed by the police. Tshabalala’s attention was drawn to the date and time appearing on the video of this activity which indicated it was filmed at 10h44 on 26 January 2011 and it was suggested that the obstacles could not have been placed under a police barrier on the second day. Tshabalala responded that the picketing area at that stage included the portion of the street in front of the open area on the opposite side of the road to the left of where the barrier tape was strung across the road. Strikers were still in the street because the parking space had not yet been arranged as a picketing area.

[38] Du Toit was also challenged on the fact that in the disciplinary enquiry proceedings on 9 February 2011, he only identified Ditire and Moloi placing obstacles in the road. By way of clarification, du Toit explained that at the hearing, the employee’s representatives had refused to view the footage of the incident of obstacles been placed in the road and therefore they worked on with the persons that he could recall at the time of the incident, without the benefit of the video footage. He could not explain the fact that there was no reference to this in the minutes of the enquiry. Before the enquiry, he had viewed the footage and during the enquiry. Had no knowledge of Mashiloane being added to the list of individuals against whom disciplinary enquiries were pursued in the place of Isaac Kominisi, which the minute of the disciplinary enquiry of Mogane February 2011 records as being done by agreement. Du Toit was further tackled on the fact that when proceedings against the 28^th applicants to place on 10 February 2011 he only identified a further six persons, including Tholo, Isaac Kominisi, Mashiloane,Thabethe and Mkhonza, but in his evidence in chief at the trial did not mention these individuals. His explanation for the additional testimony he was able to give at trial was that he had testified on the persons he was asked to testify about in the hearing and after the hearing he had the opportunity to go through the footage again. However, he did experience some difficulty in explaining why he did not mention other persons involved in intimidatory action when he testified at the disciplinary enquiry and whereas he was able to do so at the trial. By the end of cross-examination on this point, he was trying to explain the discrepancy on the basis that the minutes of the internal enquiry had not fully captured all his testimony because in fact he had testified about the actions of 15 to 20 people at the enquiry.

[39] During his testimony on the road closure during the trial he identified various persons in a video in front of RAM3 in Wrench Road placing various objects under a line of striped barrier tape strung across the road and tied to a pole. In particular, he identified Nhlapho, wearing a white hat, placing a neat row of what appear to be bricks or brick sized rocks under the tape. Another individual identified doing the same was Seimela and the late Mogane. Shortly after these initial efforts, a group of people emerge from the right with more objects and other debris, including a broken vehicle windscreen, which they place under the barrier tape, making the obstruction more formidable. One of those in the second group identified by du Doit, wearing a greyish shirt and carrying a stick, as placing an object on the road was Moloi. During cross-examination du Doit was questioned on why it appeared from the record that he identified  Ramahula, whom he also identified in his evidence in chief as approaching the barrier and placing an object on it, before Moloi, when they do not appear in that sequence in the video footage. However, on scrutiny of the transcript it is apparent that he identified Ramahula during one of the replays of the footage.

[40] Du Toit was also challenged about the failure to identify Phillip Masemola whom the applicants’ attorney identified as the figure dressed in distinctive black-and-white stripes and a striped hat, who also was seen contributing to the construction of the barrier and who appeared in other video footage but was never charged and still works for the company. Du Toit could only comment that he did not know him and that other managers had been asked to identify staff, but were afraid to do so. He agreed that Masemola appeared in other footage involving another vehicle that was accosted by strikers, more fully described below.

[41] When questioned about the origin of the barrier tape in cross-examination, Du Toit explained that in the open area to the right of the barriers on the road the SAPS had cordoned off the area for workers to picket behind the tape it was then removed and re-erected as a barrier across the road. He had not testified about this in chief because he had not been asked about the tape. He was then challenged with the statement appearing in the founding affidavit in support of that strike interdict to the effect that police had decided to cordoned off a portion of the road on account of the risks posed by the strike action. Although he said that more of the road was cordoned off on both sides after the initial road closure, he could not explain the statement in the founding affidavit. He did say that the tape was strung across the road on 26 January 2011, but police instructed strikers to remove it.

[42] Tshabalala claimed the police had closed the road on the first day of the strike so that the strikers could demonstrate there, because there was no place for them to picket. He confirmed, what was in any event common cause that, strikers had taken stones off the road at the request of the police.  When it was put to Tshabalala that the police had placed the barrier tape to demarcate the picketing area, he said that when the police did that there were cars parked there and they did not arrange for them to be moved. He agreed that the picketing area was where the cars were parked, but it was only on Tuesday when the cars were removed that they could stand there. He agreed that was when the tape was put around the picketing area, but after conceding that the incidents involving the car with replacement workers probably took place on the Tuesday, he mentioned that the strikers were only directed to the picketing area later that day.

[43] At the internal enquiry Komanisi and Tshabalala had been identified by du Toit as preventing staff from collecting memos from management and writing placards and directing people where to put them up.

RAM3 Incident on 25 January 2011

[44] Du Toit further gave evidence of an incident, which was not captured on video footage which took place on 25 January between about 07:30 and 08:00 in the morning. He found five stationary RAM delivery vehicles at the side of the road and drove his vehicle towards them. He parked behind the last vehicle and saw a group of approximately 11 or 12 people protesting outside the main gate at RAM3 premises. They were preventing casual workers leaving the exit to go to the vehicles. The drivers of the vehicles confirmed this and told him that the strikers were saying they should strike with them and were not happy with where they were standing. He then told them to leave and do the deliveries without the casual workers. The crowd preventing casual workers from leaving work dancing with sticks in their hands and making cutthroat gestures towards the staff in the vehicles and towards the casual workers who were behind the gates. From his recollection he identified Manene, Ndlela, Mogane, Mkhonza, Zide, Sefoka and Moloto as being part of that group. At the time he was about 5 metres away from the group. Later under re-examination he said it could not have been more than 15 metres. He identified those who stood out because they are making the most noise and were most active in the conduct he described. Later in cross-examination, du Toit included Tholo as being amongst this group and later still, under re-examination, included Mashiloane.

[45] Tshabalala denied anyone had been prevented from leaving RAM3 to get into vehicles as driver assistants.

[46] Du Toit had said that he had given evidence of this during the course of the enquiry and if the evidence was not reflected in the chairperson’s notes, then that was a fault with the notes. Erasmus was adamant that the only evidence given at the enquiry was contained in her notes and du Toit must have been mistaken about this.

General allegation of misconduct

[47] Du Toit testified that, in general, the behaviour of strikers became aggressive when vehicles were leaving. That is when they would make gestures with their fists and cutthroat gestures as well as swearing at the drivers. In relation to himself personally, strikers would point their sticks at him as if the sticks were firearms, saying they were going to shoot them. They also made cutthroat gestures directed at them as well as calling them white racists. In this regard he singled out G Vuma, S Tshabalala, Ditire, Thabethe, Moloi, Gabohewe, Nhlapho and Tshabalala as behaving in this manner. Du Toit said this activity endured throughout the strike, but could not explain why, if he had reported this to HR, these individuals were not charged with this specific misconduct when charges were initially drawn up. Tshabalala denied he could have made cutthroat gestures to management when he was with the management most of the time.

[48] Under cross-examination, he was asked to explain why he had not mentioned at the enquiry that any of the strikers had made cutthroat gestures towards non strikers and replacement workers. Du Toit could only attribute this to a shortcoming in the chairperson’s minutes of the enquiry. He also could not understand why any of the workers would call him a Communist.

Crowd incident involving delivery van

[49] A further incident which du Doit testified to, which was also captured on video footage, is when one of the applicant’s vehicles is passing down the road and a group of strikers charges towards it. In that incident, a group of approximately 20 persons are standing obstructing the far side of the road opposite the company premises. They are looking towards traffic moving in the other lane and start moving towards the centre of the road as a small black car approaches from that direction. As it passes close to the group, the group  starts to move the around the back of the car towards a RAM van travelling in the same direction as the car but closer to the pavement to the left of the car, which was travelling nearer to the centre of the road. The crowd surges towards the van as it passes and a number of them can be seen brandishing long objects in their hands. One individual in the centre of the crowd can be seen waving his arm which is holding an indistinct object in an apparent effort to flag down the approaching vehicle. Another, closest to the oncoming traffic can be seen raising his left hand above his shoulder in the direction of the approaching vehicles. Du Toit identified this person as Kunene. The driver of the RAM van manages to elude the group rushing towards it by slipping between the car and the pavement. According to du Toit the van would have been approaching the main building to load up stock that was to go out that day.

[50] Tshabalala, who was part of the group, denied they were ‘storming’ it, but were asking the driver why he was treating their strike as if it was unlawful by working. He denied the group was trying to stop the van, but merely wanted inform the occupants of the van that the strike was protected by saying this as they ran forward.

[51] Du Toit also claimed to identify another member of that group as G Vuma, who was wearing a grey jersey. Initially when du Doit was shown a portrait photograph of Kunene he identified him as G Vuma, but then corrected himself by confirming that person as Kunene. He also claimed to identify Ndou next to G Vuma. Under cross-examination, du Doit felt that when Kunene raised his arm he might have been trying to provoke the others, which is why they stormed the vehicle because that triggered their action, even though he did not storm the vehicle with the rest of the group. Du Toit conceded that other members of the group could also have identified the RAM vehicle approaching without relying on Kunene to alert them to that. Du Toit also identified Maabane who could be seen with his vuvuzela at the forefront of the group.

[52] In this footage also, the figure identified by the respondent’s as Masemola, with a long object in his right hand, appears from the right running up to join the group as the delivery vehicle slips past them. Du Toit could not explain why the other members of the group which stormed the vehicle were not identified and dismissed for participating in the same incident. There appear to have been approximately 20 to 25 persons in the group.

Interception of a cars carrying replacement workers

[53] Du Toit also gave evidence on an incident on the morning of 25 January 2011 involving an unmarked vehicle driven by Frans Sebetha, a Human Resources operator, which had been used to collect staff during the strike to avoid intimidation of casual employees coming in. In one incident he identifies three applicants approaching a vehicle, Maabane, B Vuma and Kobapshiri. In this incident the vehicle was being driven away from the hub. Sebetha testified that the people at the door were “telling theoutsources (sic) to jump off the vehicle because they do not want them to work there as they are on strike.”

[54] In video footage of this incident (‘Frans 2’) on which du Doit was not examined in chief, the unmarked car is seen waiting at the traffic light to turn left from Wrench Road into Industria Road. Next to the car are three persons close up against the left side of the car focussing their attention on the passenger door. The passenger door is then opened and two of the individuals appear to be reaching into the vehicle through the open door.  About seven other figures are close at hand and watching from the curb at the corner of the intersection. Another figure holding a yellow vuvuzela approaches this group from behind along Wrench Road. As he reaches the group he steps onto the pavement and moves to the left of the group a little distance from the car. His vuvuzela can be seen swinging to and fro slightly, about two metres from the back of the car. While this takes place the three figures at the front door of the vehicle get more animated and appear to be tugging at something inside the door, but the car moves off rapidly and turns left. The tallest of the three figures dressed distinctively in a striped top and a matching striped shirt raises his arm and points at the vehicle as it disappears. Under cross-examination on this footage, du Doit conceded that this individual appeared to be holding a stick.

[55] The video footage commences when the car is already stationary and it was a point of some debate if the car turned while the traffic light was still red or if it had changed. On closer scrutiny it appeared that the brake light of the adjacent truck went off and it started to move forward moments before the car did, so it seems more likely the lights had changed when the vehicle took off. Du Toit conceded in the light of this that the traffic lights could have changed. Neither Maabane, B Vuma nor Kobapshiri gave any evidence in rebuttal of the case against them.

[56] Sebetha was also driving on this occasion, taking replacement workers from the station to RAM1. He identified Kobapshiri and Phillip Masemola as two of the persons standing next to the car. As in the other incident he was involved in, according to him they were not speaking to him but telling the replacement workers who were in the vehicle to jump out, but they did not jump off. He also said that Kobapshiri asked them why they were working while they were on strike and later, under re-examination when asked what Kobapshiri said exactly to the people in the car, Sebetha said “no he just said jump off the vehicle, and if you can come back here we are going to beat you because we are on strike”.

[57] Under cross-examination, he said he was only asked about this footage at the disciplinary enquiry. Even though he could have identified Masemola he was not asked about him.

[58] Another one of the trio in this incident was Tshabalala who can be seen swinging the passenger door open wider after it is opened. Du Toit could not deny that the driver, who was oddly referred to a ‘Sibeko’, was a friend of Tshabalala nor could he deny that Tshabalala had asked him not to break the strike. In the end there was no evidence led of the supposedly friendly relationship Tshabalala had with Sebetha. Du Toit agreed that if he said that, there was nothing wrong in that. He was reluctant to agree that the driver might have opened the door as Tshabalala would say. Tshabalala claimed that he had simply asked Sebetha why he was transporting people while the strike was going on, but he never replied. All he said to the people in the car was that the strike was legal.

[59] Du Toit testified also in relation to more video footage (labelled ‘Frans 1’) taken on the same day involving the same vehicle. On this occasion, the vehicle again driven by Sebetha is returning to the hub, entering Wrench Road from Industria Road transporting three casual workers. The driver’s door is opened after the car comes to a standstill at the traffic light after  one of the strikers, identified as Tshabalala, is seen walking purposively alongside the vehicle as it approaches the traffic light next to the driver’s window. The vehicle moves to the left as he walks next to it. When it comes to a standstill at the lights which appear to have turned red, Tshabalala is seen to open the driver’s door and puts his head and torso into the vehicle through the open door. At this point the lights change and two other vehicles behind the vehicle pass on the left hand side and turn left at the intersection.  The intercepted vehicle remains where it is. Almost immediately afterwards, a figure wearing a white top emerges from the other side of the vehicle and Tshabalala can be seen gesturing dismissively towards him with his left arm. The person who has emerged walks slowly off and can be seen apparently consulting his cellphone. Then another person with a red shirt and black hat emerges from the vehicle on the same side. As he does so, another figure approaches rapidly with a raised stick above his head moving in the direction of the side of the car where the last person just appeared. Du Toit identified the figure as Bontshi. Bontshi then strikes the road with his stick just behind where the last person who exited the vehicle is standing and then runs around to the front of the vehicle to join his fellow striker at the driver’s door. As he reaches the door a third figure with a khaki top emerges from the other side of the vehicle and almost immediately afterwards as Tshabalala can be seen shutting the driver’s door a fourth person with a striped shirt emerges from the car. Tshabalala then turns his attention to the last two persons to exit the vehicle who are walking away and can be seen following them and gesturing towards them. At this point the vehicle moves off and Bontshi can be seen making a throwing gesture with his right arm in the direction of the departing individuals, before turning around and striking the road with his stick in a gesture of what appears to be satisfaction. Du Toit conceded that the persons alighting from the vehicle did not seem to be intimidated, judging from their appearances.

[60] Sebetha had been collecting replacement workers from a garage nearby. He could not recall whether he or Tshabalala had opened the driver’s door. He did say that Tshabalala did not speak to him at all but was telling the “outsources to jump off the vehicle.” When asked to elaborate he said that Tshabalala “said they have to jump off the vehicle because they are on strike, they do not allow them to come to work at to RAM” and that “if they can come back they will beat them.” Sebetha also said that Bontshi made the same threat and identified him in the video footage.

[61] Tshabalala denied addressing the replacement workers and also denied hearing Bontshi making any threat towards them, though this was not specifically put to Sebetha when he testified. He also denied there was anything untoward about Bontshi’s conduct in striking the road with his stick as he was just hitting downwards which was not intimidating anyone. When pressed on the intimidatory character of Bontshi’s behaviour, Tshabalala would only say that, in his eyes, Bontshi was just dancing and beating the ground and that he had asked the occupants of the car why they were working when there was a protected strike.

[62] Later, under re-examination when asked exactly what Tshabalala said to the replacement workers, he confined himself to saying: “They told them we do not need people to work here as we are on strike.” Sebetha said he was able to collect other replacement workers that day but took another route and was able to get them to work. Under cross-examination, he confirmed that he was able to take other replacement workers to RAM1 even though there were strikers present there.

Tyre and pole incident

[63] Du Toit also recalled another incident which occurred after it had just rained when two individuals tried to burn a tyre across the road from RAM1 in the picketing area. One individual, Moloi, came up from Industria Road along Wrench Road with a 2 litre Sprite bottle containing liquid and the other, Ditire, had a tyre on a tar poll which they tried to light without success. He said this incident occurred the day before the strike ended, which presumably was Friday 24 January 2011. Du Toit witnessed this with Schutte.  Du Toit was adamant that the bottle was green even though it was recorded by the chairperson of the disciplinary enquiry as a ‘Coke’ bottle. As far as he could recall he had said it was a ‘Sprite’ bottle at the enquiry. It was suggested to him that he had changed his testimony because the contents of a Coke bottle would naturally have been dark even if it contained Coke, but he appeared to misunderstand the nature of the question. Ditire had been approaching with the pole from the other end of the road near RAM3.  Moloi poured the liquid over the tyre but it would not burn and the two of them began ‘dancing’.

[64] He further claimed that the objects were removed when the strikers dispersed so they could not be retrieved as evidence.

[65] Du Toit claimed there was no time to take photographs on his cellphone at the time because he was still trying to see what was happening in case he had to phone the fire department or get extinguishers to put the blaze out. He was challenged why, as a security person specifically assigned to monitor the strike, he did not take photos of such an incident or others that were not captured on the video cameras and it was put to him that the reason such evidence was not available was because the incidents were fabricated. Du Toit denied this and the further hypothesis that once all the strikers had agreed to plead guilty, it was decided to selectively pursue those who were considered problems with a view to dismissing them. Under re-examination he indicated that cameras did not cover the entire length of Wrench Road and he was referred to testimony of another witness at the disciplinary enquiry who had given evidence of being unable to collect replacement workers because of intimidation.

[66] Du Toit testified further to an incident in which a banner had been displayed by Thabethe which said “Graham beware”. Du Toit explained that he understood this to refer to the managing director of the company. The banner had been placed across the road from the main entrance to RAM1.

[67] Another incident mentioned by du Toit was one in which he saw Schutte being charged by Gabohewe, who was walking up Wrench Road brandishing a stick. This is set out when with the evidence relating to Gabohewe below.

The specific evidence concerning individual applicants

[68] Applicant no 2: Ernest Seimela

68.1 Du Toit identified Seimela in video footage of events taking place in Wrench road as one of the persons placing rocks and bricks on the road. Du Toit testified that he knew Seimela because they previously interacted when he took his statement because he had pressed a panic button in a vehicle.

68.2 Schutte gave evidence that Seimela together with Ndou forcibly turned around a pedestrian approaching along the road. He said Seimelawas threatening and intimidating towards non-striking employees and the respondent's manaqement". Chiloane also identified Seimela in the accompanying video footage. Neither Schutte nor du Doit provided  this  evidence  at  the disciplinary enquiry.

68.3 Erasmus testified that Seimela’s name had been one of nineteen appearing on a list presented during the mass enquiry of who were identified as being the group of employees who charged the RAM delivery vehicle on Wrench Road.

68.4 Seimeladid not give any evidence in his defence.

[69] Applicant no 3: Titus Maabane

69.1 Du Toit identified Maabane as being part of a group of striking employees that had stopped a vehicle driven by Sebetha and talking to the passengers". Du Toit also testified that he had previously interacted with Maabane when he had falsely pressed a panic button". In the video in which du Doit identified Maabane, at the car which  had  allegedly  been  stopped by the  individual applicants, but which the applicants submitted had in fact stopped at a red traffic light. The applicant’s contend that Sebetha's evidence did not corroborate du Doit's evidence and he made no mention of Maabane'.

69.1 The applicants contend that Maabanehad originally been dismissed on the strength of the hearsay evidence of Pienaar at the disciplinary hearing and du Doit conceded that none of the video footage of the strike over five days showed any evidence of his alleged misconduct.

69.2 Maabane did not give evidence.

[70] Applicant no 4:Tebogo Tholo

70.1 Du Toit had implicated Tholo in intimidatory conduct during the disciplinary enquiry, but when he gave his evidence in chief at the trial about the other strikers who had been involved in this kind of conduct in front of the main gate where he was stationed, he failed to mention him. When asked why he had forgotten that Tholo had allegedly pointed a stick at him as if it was a firearm, he said that he had simply forgotten that and denied that it was because it was fabricated evidence.

70.2 When re-examined, du Doit confirmed that Tholo usually had a stick in his hand or put it behind his back and pointed it like a firearm at du Toit and others. He also claims he made cut-throat gestures.

70.3 Schutte identified Tholo as  being very aggressive during the strike  period, carrying a stick, shouting intimidating language, making  cutthroat  gestures  and  threatening the  respondent's drivers. He was also identified as charging a vehicle on Wrench Road  and  throwing  papers  which  had  been  handed to  the strikers,  by  Lize  Arnott  the  respondent's Human  Resources Managers. The last mentioned incident was captured on video footage and shows Tholo picking up a piece or pieces of paper, which had just been placed on the opposite pavement near the picketing area by Ms Arnott, the HR manager, then walking into the road and hurling at contemptuously towards where company personnel were gathered. Schutte testified that the document was one of the ultimatums to strikers to come back to work. Tholo said he did this because there was no reason to write letters to them while they were striking, but denied shouting any abuse at the HR manager when he flung the document after her. He said he was not interested on what might have been on the papers and saw nothing wrong in throwing the papers back at the HR manager. When asked how he could go back and work with the same person, he indicated he had his own reasons for not wanting to go back.

70.4 Tholo   testified   and   denied   making cutthroat   gestures or threatening management.  He stated that he was carrying a vuvuzela as opposed to the stick, which Schutte claimed he saw him carryinq. He also denied threatening drivers shouting abusive language or charging vehicles, but agreed he had been with the group of workers standing in the middle of Wrench Road. Pointing to his stomach, he asked rhetorically how he could charge vehicles with such a large one.  However, he thought his bulk was less conspicuous when asked if he would not be easily identified being such a large man. He is clearly identifiable in the video as carrying a vuvuzela.

[71] Applicant no 5: Frans Manene

71.1 Du Toit testified that he saw Manene among strikers that were preventing staff from entering a vehicle outside RAM 3. He testified that he had interacted previously with Manene where he had lost a parcel. He confirmed this evidence under re-examination. This was not disputed by Manene in his own evidence.

71.1 The applicants contend that Manene had originally been dismissed on the hearsay evidence at the disciplinary hearing. Du Toit conceded that none of the video footage of the strike over five days showed any evidence of his alleged misconduct.

71.2 Manene admitted to carrying a stick during the strike but denied being part of the striking employees who were outside RAM 3 making cutthroat  gestures  and  intimidating non-striking employees. He denied making any intimidating  gestures  to anyone and making abusive or threatening statements to other people and management. Under cross-examination he said he arrived after Ndlelah00 on the second day of the strike. He had not heard the evidence of du Doit about him being present in a group at the RAM3 entrance between 07h30 and 08h00. He said he joined the group of workers at RAM1 though he did move up and down the singing with them, but did not go to RAM3. Manenedid acknowledge seeing the delivery vans returning to RAM1, but thought they were coming to load parcels after collecting casual workers at RAM3. Eventually, he did agree he had been on the road in front of RAM3, but they were singing going there and coming back and he could not remember making a throat cutting gesture or storming vehicles.

[72] Applicant No 6: Welcome Kunene

72.1 When shown video footage entitled ‘Stopping1’, du Doit testified that he could identify Kunene among a group of strikers that charged towards a moving vehicle putting up his left hand right at the beginning of the incident.

72.2 When  asked to   identify  the  people  on  page  286  of  the respondent's  Bundle of Documents, which is a frame from the video footage, du Doit  identified a somewhat indistinct figure in black as Kunene and stated that he had his left hand up towards a RAM vehicle. When asked to identify a photograph on page 285, of a clearly visible face in the same bundle of documents, du Doit incorrectly identified the same man as Given Vuma and then when showed the photographs on page 283 he identified a different man as Kunene. In re-examination he easily identified a photograph of Kunene correctly.

72.3 Under cross examination, when asked what was so offensive about Kunene's conduct that  it  warranted dismissal,  Du  Toit testified that he was not close enough to the situation but then stated that Kunene tried to stop the car by telling the driver to stop.

72.4 When further cross-examined, du Doit conceded that Kunene did not charge at the vehicle in question and that from the video footage he appeared to be doing nothing in particular.

72.5 The applicants contend that Kunene had been dismissed on the strength of the hearsay evidence at the disciplinary hearing. Du Toit also agreed that conceded that the video footage of the strike over five days did not show any evidence of his alleged misconduct.

72.1 Kunene did not testify in his own defence.

[73] Applicant no 7: Isaac Mashiloane

73.1 Schutte testified that Mashiloane carried a stick in his hand during the strike, shouted abusive language, charged at vehicles and shouted slogans.

73.2 Mashiloane admitted being charged together with everyone else but was unaware of the evidence led against him by Schutte and du Doit at the enquiry. He blamed the company for this, not his representatives. He also did not know how the collective enquiry came about. He claimed to have been waiting for the hearing when he heard he had been dismissed.

73.3 Mashiloane denied ever having a stick in his possession, though this was not put to the employer’s witnesses. He also denied provoking anyone throughout the strike and could not think of a reason why he would have been singled out by du Doit. Further, he did not see any storming of vehicles nor intimidating conduct by other strikers or the placing of obstacles in the road despite being present at the strike. He had not gone to look but to strike. He further testified that he was initially given a final written warning along with other employees then without notice he was added to the group of employees who were ultimately dismissed".

73.4 Du Toit incorrectly testified in chief that, Mashiloane had been part of the original 28 (twenty-eight) employees who were initially charqed", He failed to comment on Mashiloane's addition, after the enquiry, to the list of the 28 employees who were charged and later dismissed. However, it is clear that he did testify against him in the second phase of the enquiry. Schutte also identified Mashiloane as a member of the group that charged vehicles and that he carried a stick in his hand, called management racists and used abusive language. He felt that it was directed at him because he was part of management standing at the front and it was said directly to them.

[74] Applicant no 8: Agrippa Ndlela

74.1 Du Toit testified that Ndlela was part of the group of strikers who prevented employees from entering a vehicle outside RAM 3 and that he had previously interacted with Ndlela where he had pressed panic button on the West Rand.

74.2 Ndlela, in his testimony denied preventing staff from getting into a vehicle, making cutthroat gestures and telling other employees to go on strike.

74.3 The applicants contend that Ndlela had originally been dismissed on the strength of the hearsay evidence of Pienaar at the disciplinary hearing and du Doit conceded that none of the video footage of the strike over five days showed any evidence of his alleged misconduct.

74.1 In Ndlela’s evidence in chief, he said he was part of the group in front of RAM1. He denied having been part of the group at RAM3 and denied that vans had been prevented from collecting replacement workers as driver assistants from RAM3 as Ahmed had testified. He could not explain why then it had been necessary for Ahmed to issue an instruction for the vans to return to RAM1 to collect permanent employees as driver assistants. He recalled some persons at RAM3 such as Ditire behaving in an intimidatory fashion, but denied that he had. He could not identify any others. He finally conceded he could not recall if replacement workers were not prevented from entering vehicles at RAM3 on the second day of the strike. When asked if he had prior interactions with du Doit,  he stated that  he had never worked in the West Rand

[75] Applicant No 9: Afrika Mogane

75.1 In his evidence in chief, du Doit identified Mogane from video footage walking away from the road closure and as being part of a group of strikers who were standing in front of RAM3.

75.2 Under cross examination du Doit added that he saw Mogane place a rock on the road before walking away.

75.3 The applicants contend that Mogane was dismissed on hearsay evidence tendered at the disciplinary hearing. It was further conceded by du Doit conceded that the video footage of the strike over five days did not show any evidence of his alleged misconduct.

75.4 Mogane also did not give any evidence in his defence.

[76] Applicant No 10: Robert Ndou

76.1 Du Toit testified that he saw Ndou charging at a vehicle". He also testified that he had previously interacted with Ndou after a hijacking.

76.2 In Schutte's testimony he identified Ndou pushing a non-striking employee, wielding a stick and acting aggressively towards the respondent's drivers and contract workers. Schutte further testified that Ndou threatened management and accused them of being racist. It was suggested indirectly to Schutte under cross-examination that because a number of other pedestrians had passed by unhindered while this individual was being violently pushed around, that access was not been prevented. Schutte’s view was that people who did want to come to work who were identified by the strikers were intimidated.

76.3 Chiloane also identified Ndou from the video footage of the incident with the pedestrian.

Ndou did not give any evidence.

[77] Applicant No 11: Given Vuma

77.1 The evidence provided by Schutte and du Doit at trial was not provided at the disciplinary hearing against Vuma.

77.2 Du Toit identified Vuma in video footage entitled Stoppage 1 in which strikers moved towards a RAM vehicle. He also testified that Vuma made cutthroat gestures and called management “white racists".

77.3 Du Toit also testified that he saw Vuma standing with a group of people at the stoppage of a vehicle. He stated that he was being generally intimidating and misbehaving.

77.4 Schutte stated that he saw Vuma picking up ultimatums and shoving them down an open drain next to the picketing area, which was also evident from the accompanying video footage. He testified that he was also aggressive and accused management of bad management while he was doing that. G Vuma’s cameo performance in this video was brief: he emerges from behind what appears to be a clothesline of placards and makes a good job of stuffing papers in the drain, before retreating to the picketing area behind the placards. Another employee comes forward and completes the disposal of the documents by pushing them through the drain grill with a stick.

77.5 The applicants contend that G Vuma was dismissed on the basis of the hearsay evidence at the disciplinary hearing and noted that du Doit conceded that none of the video footage of the strike over five days showed any evidence of his alleged misconduct, which is plainly wrong in view of what is discussed above.

77.1 G Vuma did not testify.

[78] Applicant no 12: Samuel Mkhonza

78.1 Du Toit testified that he saw Mkhonza as part of the group of striking employees who were dancing, had sticks in their hands and were making cutthroat gestures towards the respondent's employees that were within the perimeter of the company's gates. Du Toit did not identify Mkhonza at the disciplinary hearing.

78.2 Mkhonza denied making any cut-throat signs, threatening anyone or carrying a stick during the strike, though it had not been put to du Doit that Mkhonza never had a stick during the strike. He said that he had been with the group at RAM1 until they were taken to the open space, which he recalled taking place during the morning. He denied ever being part of the group gathered at RAM3. He disclaimed all knowledge of the alleged strike misconduct of others and was not prepared to speculate on what Ditire’s apparent throat cutting gesture captured on the video footage could have meant. He only admitted to seeing someone with a vuvuzela. He got tired from singing and sat down so he did not see those things. He likened the footage of Bontshi striking the ground with his stick to the President holding his spear when he sings and suggested it was another way of singing.

78.3 The applicants contend that Mkhonza also was dismissed on the hearsay evidence in the disciplinary hearing and noted that du Doit conceded that none of the video footage of the strike over five days showed any evidence of his alleged misconduct.

[79] Applicant No 13: Samuel Tshabalala

79.1 Towards the end of his testimony, du Doit identified STshabalala as being part of the group that made cutthroat gestures and called the management white racists".  He testified that Tshabalala was generally intimidating and misbehaving. At the enquiry he had failed to identify him as a perpetrator of misconduct. S Tshabalala was also not identified by the supposed secret witness from any of the videos shown at the enquiry.

79.2 Schutte identified S Tshabalala  in court and testified that  he was very prominent during the strike. He called Schutte a ‘bad manager’ and said he had a “black heart”. He also threatened the couriers who were coming in and out and was involved in charging vehicles and threatening drivers. He could not recall if he had made throat cutting gestures but remembers that he was very aggressive with his stick. S Tshabalala denied these claims and believed that Schutte had said this because he was his subordinate and did not like him, a claim also not put to Schutte during his evidence. He said the working relationship they had was close initially by not since he found him in a car of someone who smoked dagga, which led him to believe he did too. In explaining why this was not related to Schutte when he testified, S Tshabalala said did not tell his lawyer this because the time had not come for her to ask about such things. He did claim to have told his lawyer that he did not have a stick as alleged by Schutte after hearing Schutte’s evidence in court.

79.3 Tshabalala said he did not make any cut throat signs and neither did he call the management white racists. He also denied having a stick, threatening anyone or possessing a stick at any time during the strike. He also disputed that it was him that was identified by Schutte as talking to Mr Bekker in some of the video footage, though Schutte was not specifically tested on this when he gave evidence. It appears that this was a naming confusion between S Tshabalala and Tshabalala, the shop steward.

79.4 S Tshabalala had a positive view of strikers conduct during the strike. He too saw no misconduct by strikers taking place and had various innocent explanations for what was shown on video in court, one of the most interesting being that the apparent cutthroat gestures made by Ditire might have been because he was telling someone he was thirsty. Similarly, Bontshi’s gesture of striking the ground with his stick near the replacement workers getting out the car, he interpreted as a sign of happiness, and that if he had intended to frighten them he would have started by hitting the car. He did concede that if Bontshi had threatened them it would have been wrong to do so. As to the use of sticks as if they were guns, he commented that during a strike people did a lot of things such as crawl like soldiers or bring wooden guns in the form of AK-47’s.

[80] Applicant No 14: Dumisani Twala

80.1 Erasmus testified that at the disciplinary enquiry Andrew Patrick Williams (Williams) gave evidence that he was approached by Twala and Jabulani and that he felt intimidated as they called him a traitor or sell out and threatened to beat him up.

80.2 By the time the matter came to trial Williams had passed away and Erasmus related the evidence which he had given at the enquiry that had also been recorded in an affidavit which she handed up. The gist of his evidence at the enquiry was that on 27 January 2011 when he parked his vehicle and was walking to RAM1 he greeted a group of strikers as he passed and then was called a “gundwan”, which he later understood meant a traitor or sell out. When he asked them what they meant by that, Twala and a certain ‘Jabulani’ approached him. Twala threatened to beat him up and he challenged them to try, after which they turned around and left him. He said he was scared they would assault him and felt bad.

80.1 Twala did not testify.

[81] Applicant no 15: Jackson Ditire

81.1 Du Toit identified Ditire as one of the two men that had a tyre on a tar pole and walked up Wrench Road with a sprite bottle. He also identified him as part of the group that made cutthroat, du Doit identified Ditire as one of the two men that had a tyre on a tar pole and walked up Wrench Road with a sprite bottle. He also identified him as part of the group that made cutthroat gestures and called management white racists.

81.2 Du Toit further testified that he identified Ditire at the disciplinary hearing. He also testified that he saw Ditire carrying a rock in the footage of strikers putting rocks on the road between RAM 1 and 2. He also testified that he saw Ditire as aggressive, with a stick in  his  hand,  placed  rocks  on  the  road  and  who  swore  at management. He was identified as being generally intimidating and misbehaving, spitting at HR issuing documents and referring to du Doit and others as “white racist bastards”.

81.3 Schutte testified that he saw Ditire dancing and making cutthroat gestures at the people coming from the railway station and using abusive language.

81.4 JD did not testify in his own defence.

[82] Applicant No 16: Ben Vuma

82.1 Du Toit identified B Vuma in the video footage as someone carrying a yellow vuvuzela and being part of a group of strikers who stopped a vehicle driven by Frans Sebetha (‘Sebetha’). He also identified him as being part of a group of strikers who charged at a RAM vehicle.

82.2 Du Toit conceded under cross examination that, he did not commit any misconduct by walking towards the vehicle at the traffic light.

82.3 B Vuma was also identified by du Doit as being part of the group which is shown in video footage charging at the RAM delivery van. He was in the front of the group moving towards the centre of the road when the RAM vehicle is approaching, but his advance is blocked by the black car which moves in front of him as the van avoided the group by moving on the other side of the car. Du Toit conceded that B Vuma did not raise his yellow vuvuzela which remained pointing towards the ground during this incident.

82.4 Du Toit said he had identified B Vuma from an incident in which he was involved in a hijacking, and stuck to this account when it was put to him that the employee would deny this and that he worked in the warehouse rather than being in a vehicle. Du Toit said it was possible if there was a staff shortage that warehouse staff might crew on a vehicle. He also confirmed his identification of B Vuma from a photograph during re-examination.

82.5 The applicants contend that B Vuma had originally been dismissed owing solely to the hearsay evidence of Pienaar at the disciplinary hearing and du Toit conceded the video footage showed no evidence of his alleged misconduct. Plainly, this was an error on du Doit’s part.

82.1 B Vuma did not give any evidence, despite it being put to du Doit that he would testify that he never conducted himself in a remotely threatening manner during the strike and that the evidence against him was a fabrication.

[83] Applicant No 17:Templeton Bontshi

83.1 Commenting on video footage shown in court du Doit identified Bontshi among a group of strikers that stopped a vehicle driven by Sebetha carrying casual employees to the hub. Bontshi, wearing a blue hat, can be seen approaching the vehicle and striking the road forcibly with a stick as he does so. The video footage is described in more detail above]. He testified he had previously interacted with Bontshi when he pressed a panic button.

83.2 Du Toit when showed video footage entitled ‘Frans 1’ testified that the man throwing sticks at the direction of the people as Bontshi. During the second day of his testimony, du Doit did not recognise Bontshi in a portrait photo in the bundle. He denied this cast doubt on the accuracy of his testimony. He confirmed a photograph of someone placing a poster on a lamppost was Bontshi and confirmed that he could be identified by the blue hat he wore throughout the strike.

83.3 The applicants argued that Bontshi had initially been dismissed on the bassis of the hearsay evidence of Pienaar at the disciplinary hearing and du Doit agreed that noneof the video footage of the strike over five days showed any evidence of his alleged misconduct. As in other instances, this blanket concession extracted under cross-examination was at odds with more detailed testimony he gave.

83.4 Bontshie did not give any evidence in his defence.

[84] Applicant No 18: Luckford Zide

Du Toit identified him from a group that were standing in front of RAM 3 making cutthroat gestures toward staff in the vehicles and having sticks in their hands, though du Doit did not give such evidence at the disciplinary hearing and Zide was originally only identified and dismissed on the strength of the secret witness whose indistinct hearsay evidence was tendered by Pienaar at the disciplinary hearing and du Doit conceded that none of the video footage of the strike over five days showed any evidence of his alleged misconduct. Zide did not give any evidence.

[85] Applicant no 19: Brian Thabethe

85.1 Du Toit testified that Thabethe was part of a group of strikers who made threats, pointed sticks as firearms and made cutthroat qestures. He testified that he saw Thabethe putting up a poster which read "Graham beware" across the main entrance of RAM 1. He also claimed that Thabethe was generally intimidating and misbehaving. When revising who applicants 5,8,9,11,18 and 19 were in his second day of testimony, du Doit omitted to mention Thabethe and then denied he had identified him the previous day, though he had, but later seemed to recall this. As with other incidents, du Doit was tackled on his failure to take photographs of the poster. He also could not explain why no charges of a similar nature were not put to Bontshi, who is seen in a photo placing an indistinct placard on a lamp pole.

85.2 Schutte testified that Thabethe was aggressive towards the respondent's drivers, he called them sell-outs and rats and that his whole behaviour was intimidating towards employees who were not on strike. He too was part of the group that would storm vehicles shouting at the drivers.

85.3 Thabethe admitted to putting up a poster but denied that the words on it were "Graham beware!. On the contrary, the poster he put up said : “We are not satisfied with the way shifts are changed.” Later he said more simply that “it was about the shift change”.

[86] Applicant No 20: Isaac Sefoka

86.1 Although he did not give this testimony at the disciplinary hearing, du Doit stated that he saw Sefoka in the group of strikers who were  outside  RAM3  preventing  the  respondent's non-striking employees from exiting and getting into the respondent's vehicle and were making cutthroat gestures.

86.2 The applicants contend that Sefoka was dismissed because of the hearsay evidence of Pienaar at the disciplinary hearing and noted du Toit’s concession on the absence of video footage implicating him in his alleged misconduct.

86.3 Sefoka did not give any evidence ..

[87] Applicant No 21:Lesiba  Moloto

87.1 Du Toit did not tesitify against Moloto at the hearing, but stated that he saw Moloto in the group of strikers who were  outside  RAM3  preventing  the  respondent's non-striking employees from exiting and getting into the respondent's vehicle and were making cutthroat gestures.

87.2 The applicants submitted that Moloto was dismissed on the hearsay evidence of Pienaar at the disciplinary hearing and noted du Doit’s concession of the absence of video material implicating him.

87.3 Moloto did not testify.

[88] Applicant No 22: Regwell  Ramuhala

88.1 Du Toit identified Ramuhala in video footage placing rocks and debris in Wrench Road, and as part of the group of people that charged towards a moving RAM vehicle. During the disciplinary enquiry du Doit had also identified Ramahula has been someone who was storming vehicles, swearing and intimidating staff in vehicles.

88.2 Schutte testified that he saw Ramuhala making cutthroat gestures and used a stick as if it were a weapon to shoot people. He also testified that Ramuhala intimidated the respondent's non-striking employees. Ramahula had no explanation why Schutte might have falsely accused him as there was no history of problems between them.

88.3 Ramuhala admitted to placing objects on the road on the second day of the strike. He did not dispute that the road may have been blocked off by police on the first day of the strike, but he thought it was the second day. He elaborated on why it was necessary to put obstacles there namely because RAM vehicles were still using Wrench Road and going past the barrier tape, whereas they had been instructed to use Industria Road  so the strikers could use that designated area for chanting.  He said that he did so after police blocked the road and SATAWU officials had told the strikers they had permission to chant at a certain point. He could not say if the union had the authority to decide the picketing area, but that is what they were told.

88.4 Ramuhala denied making cutthroat gestures, possessing a stick or intimidating non striking employees.

[89] Applicant No 23: Abel Moloi

89.1 Du Toit testified that he saw Moloi carrying bricks in his hands. He also testified that he saw Moloi walking up Wrench Road from Industria Road carrying a green  bottle walking towards Ditire. He also testified that Moloi was generally intimidating and rnisbehaving. Moloi admitted that du Doit knew him because he used to work with him and saw him every day. He said he had gone to collect water in the Sprite bottle after the contents were finished.

89.2 Schutte claimed that Moloi was one of the security guards and was prominent during the strike, shouting abusive language at drivers and management. Schutte also said he called management sell-outs, white racists and rats, though he failed to mention this at the disciplinary enquiry. Sometimes Moloi had a stick and used it as if it was a gun, running with it and pretending he was going to shoot people. At the enquiry, Schutte alleged he had been in front of the group in Wrench road early in the morning and was running towards vehicles pretending he was going to hit the vehicle or driver, but did not mention this in his evidence at trial. However this was not raised with him during his testimony.

89.3 Moloi admitted to placing objects on the road on the second day of the strike, but denied that it was wrongful as he was assisting the police who had closed the road with a cordon and vehicles were still driving through. As he recalled the barrier tape was put up on the second day, the same day the open picketing area across the road was assigned to the strikers. His evidence in this regard was similar to Ramahula’s. He said the tape had been broken by pedestrians walking through. Once the rocky barrier was in place the barrier was visible and they could carry on chanting.

89.4 Moloi, who gave evidence on the second last day of the trial mentioned for the first time in the proceedings that the road had been cordoned off by the police with tape in two places on the second day. On the first day the strikers had given the police a document to give to RAM management to say the strike was protected, but management would not let the police in. Unfortunately, none of this was canvassed with the employer’s witnesses. He did not recall who had put the barrier tape up or if it was already up when he arrived after Moganeh00 on the second day.

89.5 He also admitted to carrying a green bottle but he denied that there was petrol in the bottle; instead there was drinking water in the bottle which he had collected from Industria Road. He disputed the evidence of Ditire having a tyre and pole.  Moloi also agreed he had been carrying a stick as du Doit claimed but denied to pointing it like a gun, being threatening or aggressive towards anyone: he had merely been happy and singing. He also denied running towards a vehicle and pretending to hit the vehicle or the driver. The only reason he could think why du Doit and Schutte might have implicated him was because he had joined SATAWU and they had told him not to become a member. This allegation was not canvassed with either du Doit or Schutte.

[90] Applicant No 24: Ryan Kobophsiri

90.1 Du Toit testified that he saw Kobophsiri carrying a stick in his right hand and standing next to a vehicle which had stopped at a traffic light. Under cross examination, du Doit testified that he knew Kobophsiri as he had previously pressed a panic button.

90.2 Sebetha testified that Kobophsiri and Phillip Masemola told the crew he was transporting to jump out off of the vehicle. Philip Masemola was identified by Sebetha, among the applicants but he was not dismissed with the others.

90.1 The applicants contend that Kobapshiri had originally been dismissed on the strength of the hearsay evidence of Pienaar at the disciplinary hearing and du Doit conceded that none of the video footage of the strike over five days showed any evidence of his alleged misconduct.

90.2 Kobapshiridid not testify himself.

[91] Applicant No 25: Abel Gabohewe

91.1 Du Toit testified that he saw Gabohewe charging at Schutte and that Timakwe stopped Gabohewe from harming Schutte. A shop steward, ‘Anderson’, told Gabohewe to walk away. Du Toit could not say what was said between Schutte and Gabohewe. Schutte had been walking in the opposite direction down towards Industria Road. Du Toit could not explain why this evidence was not captured in the minute of the disciplinary enquiry. Under re-examination, du Doit identified Gabohewe in court and reaffirmed that he had not confused him with Nhlapho or Abel Moloi.

91.2 Schutte testified that he was walking along the road near the pavement and Gabohewe was walking next to him. Gabohewe accused him of being a racist,that he did not belong there and the land belongs “to them”. He also confronted him with a stick. Then Anderson approached and told him to behave himself and directed him away from Schutte. However, Gabohewe approached him again and swore at him saying “jou ma se poes”. This time Anderson grabbed him and asked him to walk away. At that point a vehicle turned into Wrench Road and the employees turned their attention to the vehicle and started swearing at the people in the vehicle until it turned around and went down Industria road.

91.3 Under cross-examination he explained why there might not be any camera footage of the incident, because to the best of his knowledge most of the cameras were static and as far as he knew there was only one camera that could turn. He disputed Gabohewe’s version that he had walked next to him and spoken about bad management of the company but had not made any derogatory slurs about him.

91.4 Gabonewe, in his testimony, admitted to walking next to Mr Schutte during the strike and asking him why they did not want to recognise SATAWU. He however denied charging at Schutte or accusing him of being a racist or telling him that he ‘did not belong there’.

91.5 He further denied stopping a vehicle and swearing at the people inside or using abusive language towards Schutte and several drivers and RAM management. He also denied throwing a ‘zap sign’,   using abusive and threatening language or gestures towards anybody in the course of the strike. He could not explain why Anderson Timakwe, who was an employee representative at theenquiry did not challenge Schutte’s evidence at the disciplinary enquiry, which was quite closely similar to what is set out above, since he was present when the alleged incident took place. He also had no explanation why Timakwe had not been called to corroborate his version.  He refused to be drawn on whether the alleged comments made by him to Schutte would have justified his dismissal if they had been made.

[92] Applicant No 26: John Mphahlele

92.1 No oral or video evidence was presented by the respondent against Mphahlele. The applicants claimed that Mphahlele was dismissed on the hearsay evidence at the disciplinary hearing and du Doit agreed that none of the video footage of the strike over five days showed any evidence of misconduct by him.

92.2 Mphahlele did not testify at the trial.

[93] Applicant No 27: Abel Nhlapo

93.1 At the disciplinary enquiry both du Doit and Schutte had identified Nhlapho as being involved in misconduct. Du Toit claimed Nhlapho always had something in his hand and stormed a vehicle and hit it. This evidence was not repeated by du Doit at the trial nor was he asked to confirm it. In Nhlapho’s evidence in chief it came to light that this evidence only appeared in one set of chairperson’s notes.

93.2 At the enquiry, Schutte said that he had insulted management, accused them of being bad and said they must get rid of coloured supervisors, as well as using a flat piece of wood to mimic a gun as if he was going to shoot people.  Nhlapho admitted having a flat plank in his hand but denied pointing it at people. He could not comment on the throat cutting gesture of Ditire because he did not know sign language.

93.3 Nhlapo was identified by du Doit in his testimony, wearing a white hat and putting bricks down on the main road, Wrench Road. According to what he viewed on the video footage of the incident Nhlapho then called on people to come and assist, as part of the group that put rocks and other objects on the road, Nhlapho contributing a windscreen. He was also identified as part of the group that was very aggressive towards the vehicles leaving the premises, making threatening gestures and swearing at drivers. Nhlapho agreed he had put rocks in the road and assisted in placing a windscreen there as shown in the video footage but said he did so because police had placed the tape there and RAM vehicles were breaking the tape by passing through. The rocks were put there to stop the vehicles knocking people. When accused about blocking the road by doing so, Nhlapho’s response was that the police had already placed the barrier tape there, but a RAM vehicle broke the tape. RAM vehicles leaving the premises were leaving in a rush and could have knocked people down. He also mentioned two police barriers and that he saw both being put up on the first day of the strike.

93.4 Under cross examination du Doit testified that he was able to identify Nhlapo because he had previously used him as an informer. Nhlapho agreed that du Doit knew him as a result of a trap he set for people wanting to take stock, which du Doit had instigated.

93.5 Schutte  testified  that  Nhlapo, who was one of the couriers,  was  very  prominent during the strike, that he was aggressive and used abusive language and carried a stick during the strike.,  He testified that Nhlapo was part of a group that would storm vehicles leaving or approaching the hub to try and stop it and intimidate drivers.

[94] Applicant 28: Themba Tshabalala

[95] Applicant no 28: THEMBA TSHABALALA

95.1 Commenting on video footage viewed in court (‘Frans 1’) du Doit confirmed that it was Tshabalala who could be seen talking to Sebetha who was the driver of the unmarked vehicle bringing temporary staff to the hub, which had stopped at a traffic light. While Tshabalala is talking through the open driver’s door, two of the casual workers leave the vehicle followed shortly by a third when Bontshi approaches.  As the replacement workers are moving away and the vehicle leaves, Tshabalala can be seen following them and gesticulating at them demonstratively with his right hand, holding a shortish stick in his right. Tshabalala admitted carrying a stick but said most of the strikers had them and the gestures they made with them were ‘not exactly threatening other people’ because most strikers had them.

95.2 Du Toit also testified that he saw Tshabalala removing stones from beneath the barrier tape.

95.3 Du Toit further testified Tshabalala was generally intimidating and misbehaving, in that he was one of the strikers who pointed sticks at them as if the sticks were firearms, also saying they were going to shoot them, and who made cutthroat gestures at them as well as calling them white racists by making cut-throat gestures but specifically did not identify him as one of the persons involved in the threatening of replacement workers and preventing them boarding vehicles on 25 January 2011. He denied that this evidence was a fabrication to implicate Tshabalala to ensure his dismissal and was reluctant to be drawn on whether Tshabalala ought to have been dismissed if his interaction with the vehicle transporting replacement workers was confined to appealing to them not to break the strike. Du Toit also could not comment on the insubordination charge brought against du Doit for not coming in to the firm to collect his notice of his disciplinary enquiry.

95.4 Schutte testified that he saw Tshabalala talking to  one  Mr. Becker, an employee of the respondent.

95.5 Tshabalala stated that he liaised with the management during the strike. Tshabalala testified that he did in fact speak to the driver of the vehicle transporting temporary staff but he was not intimidating anyone. He simply asked why Sebetha was transporting people whilst there was a strike. As discussed elsewhere Sebetha clearly testified that Tshabalala had threatened to beat up the casual workers if they returned, and later watered this down a bit. I did not find this belated modification of his evidence under re-examination very convincing, in the same way his equivocation about whether he or Tshabalala had opened the driver’s door of his car during the incident was hard to understand when the video footage was viewed..  Moreover, the footage of Tshabalala’s interaction with the vehicle, the casuals leaving the vehicle after he put his torso inside the vehicle and his gestures to them as they were walking away, all suggest the interaction was more coercive than Tshabalala would have the court believe. He further testified that he removed stones at the request of the police. The respondent did not  lead any evidence of  any additional charges which supposedly lead to his differing treatment.

95.6 Although it was not put to any of the company witnesses, Tshabalala testified that when he returned to work he was arrested and held in custody for seven days. He was charged with assaulting a senior security officer employed by RAM, but he was never charged with that during the disciplinary enquiry. I do not rule out the possibility of some vindictive initiative being at play here, but that does not detract from the evidence concerning Tshabalala’s conduct during the strike.

Evaluation

Procedural Fairness

[96] Aspects of the conduct of the disciplinary enquiry left much to be desired. The most egregious features are dealt with below.

[97] The chairperson’s permitted the addition of Mashiloane as one of the 27 individual strikers charged with serious misconduct after evidence was led implicating him in misconduct. This was done with the consent of the employee representatives but without making any effort to find out if Mashiloane had agreed to waive his reliance on the final written warning he had already agreed and which had been accepted as part of the general plea bargain arrangement with the majority of the strikers. He included in a new inquiry which had already concluded without his knowledge or consent and contrary to the plea arrangement he and the employer had already acceded to. Even if the double jeopardy principle might have been capable of being permissibly breached in terms of the principles in BMW (SA) (Pty) Ltd v Van der Walt [2], there was truly speaking no second inquiry he was subjected to. He was simply included in one that was about to conclude. This was grossly unfair of the chairperson’s who ought not to have allowed it, without ascertaining if he was willing to waive his rights under the general plea arrangement he was party to.

[98] Secondly, the chairperson’s admitted hearsay evidence implicating most of the applicant’s without so much as seeking to interrogate the reason for introducing it or without even ascertaining which alleged misconduct it related to. Secondly, the chairpersons’ clearly simply accepted reliability of the identification by the unidentified witness, whose ability to verify any of the persons identified in the video footage viewed was indeterminate and which they had not even tried to ascertain. They ought at least to have considered whether to admit the evidence first using the principles of s 3 of the Civil Proceedings Evidence Act 25 of 1965[3] as a guide, even if they did not consider that act binding in internal disciplinary proceedings.

[99] Both these features of the enquiry were prejudicial to the respective applicants they concerned and were procedurally unfair.

Substantive fairness

[100] Firstly, a few general comments must be made before moving to consider the specific incidents in which misconduct was witnessed. Even in a protected strike, picketing activity is not placid. It is a legitimate object of a picket to discourage other employees and third parties from breaking the strike by going to work. In order to attract their attention it can be expected that picketers will make a certain amount of noise, make placards in support of their cause and attempt to communicate vigourously and boisterously with those they see as strike breakers. In the South African context, it is common for strikers to try to maintain a level of activity and enthusiasm by toyi-toying or dancing. It is also not uncommon in the course of this activity for people to brandish sticks and put on displays of bravado, such as holding sticks as if they are firearms. One of the applicants in the matter made reference to the current State President and the way he will dance ‘as if he is lifting his spear’. Nobody would seriously take that as behaviour which is meant to be threatening. Sometimes picketers will also taunt those persons they see as undermining the strike.  None of this type of activity is necessarily inherently violent, threatening or demeaning of anyone. Such conduct in the ordinary context of an employee performing duties at work it would obvioiusly attract disciplinary action. However, in the context of a strike, even though it may be irritating, inconvenient, and raise a degree of tension, that alone does not mean it is misconduct in the course of picketing in support of a strike.

[101] However, it is all a matter of degree. An enthusiastic toyi-toyi, with imaginary firearms being fired into the air, can change from being a display of boisterous expression to something more threatening when those imaginary firearms are very clearly aimed at strike breakers, or when the taunts become threats, or racist insults, or are accompanied by throat-cutting or other menacing gestures directed at strike-breakers or those doing business with the employer. At that point, the activity ceases to be an appeal to third parties to shun the employer and support the strike: it becomes a warning that dire consequences might follow if the third parties do not heed the strikers positive appeals to ‘do the right thing’ by supporting them, or it can be an expression of hatred which might justifiably inspire fear in the persons it is directed at.  That will amount to misconduct in the course of a picket. Likewise, other more direct actions will clearly constitute strike misconduct such as when strikers use their physical presence to block access and egress to and from an employer’s premises, or make vehicles swerve from the route they were taking to avoid the crowd moving towards them and obstructing their line of travel, or where physical force or violence is exerted against strike breakers or other third parties, or on their property, as an alternative to persuasion. Equally, it should be obvious that criminal activity does not become decriminalised because it occurs in the context of a strike, whether the strike is a protected one or not.

[102] In this case, there obviously were varying degrees of intimidating conduct committed by some of the strikers. But not everyone who was a member of a particular group of strikers was necessarily behaving in the same manner. For example Ditire would be making throat cutting gestures amidst a crowd of chanting and dancing picketers, whose own conduct did not appear to be of a threatening nature. Similarly, when some strikers were making threats to strike breakers in vehicles, other strikers kept their distance from the activity and were little more than onlookers.  I have approached the evidence implicating the applicants in misconduct bearing this in mind.

[103] Turning to the evidence itself it is necessary to comment on some general aspects affecting the weight to be attached to various evidence. Obviously the trial was a hearing de novo but that does not mean that what transpired in the internal enquiry was irrelevant, when it comes to evaluating the version placed before the court. A notable feature of the disciplinary enquiry was the introduction of the list of names of persons supposedly identified by a secret witness of persons involved in alleged acts of misconduct. It appears that after the list was introduced video footage of a few incidents was viewed, but there was nothing on the enquiry record, consisting of the notes of the two chairpersons, to explain which individuals on the lists were associated with which incident. Six of the applicants were originally dismissed on the strength of this list alone namely, Manene, Ndlela, Mogane, G Vuma, Mkhonza, Zide, 20 and Mphahlele.

[104] Further, it is noteworthy that, aside from G Vuma, these applicants were not identified by either Schutte or du Doit during the enquiry, even after a second viewing of video material. They were only identified as participating in incidents for which there was no video footage available by the time the matter came to trial. During the trial all of these applicants were identified by Schutte or du Doit as either having been involved in storming vehicles, blockading the gate at RAM3, or both, without much detail being provided. The reliability of these eyewitnesses’ recollection, more than two years after the events, of persons whom they could not identify at the time and for which no other corroborating evidence could be produced is naturally a matter of concern, even if no evidence was led in rebuttal. In setting out the evaluation of the evidence, where possible the applicants have been grouped together for the purpose of coherence, even though it is still unavoidable that where they were involved in more than one alleged act of misconduct it is necessary to detail that separately from misconduct they were jointly involved in.

Attempts to get replacement workers to leave a vehicle

[105] From the evidence relating to the incident captured in the video footage titled ‘Frans1’, it is difficult to interpret the action of Bontshi as anything less than blatantly intimidating. It is true that he did not strike the car or one of the replacement workers but it is apparent he struck the ground very forcibly between the vehicle and the replacement worker. Further he can be seen throwing or making as if he is throwing an object in the direction of the retreating replacement workers towards the end of the footage. The object of his action could only have been to instil fear in the occupants of the vehicle that if they attempted to return, the stick might land on them. As regards the conduct of Tshabalala, it is apparent from the video that he has his hand on the driver’s door as the vehicle slows down and opens it almost immediately. Sebetha only moderated his version of what Tshabalala said under re-examination. Even if one accepts the moderated version it is quite clear Tshabalala was giving the replacement workers an instruction and that the car did not move off until all of them had got out. He was only content to leave the vehicle alone when that had been accomplished. His gestures in following them after they had alighted from the vehicle were not those of someone thanking them for supporting the strike but were the gestures of someone sending them on their way in an aggressive fashion. On the probabilities, I think it more likely than not, that there was at the very least an implicit threat conveyed by Tshabalala and he was not simply conveying a message asking them to show solidarity and then leaving them to decide what to do. In any event, he was clearly interfering directly with replacement workers coming to work.

[106] The second incident reflected in the video footage titled ‘Frans 2’ Given his gestures after they left it did not look as if he was trying to persuade them to leave the area using the force of his argument. The driver clearly implicated Kobapshiri in threatening to beat up the replacement workers if they returned. Tshabalala was also involved in this incident as one of the trio at the front passenger’s door. He opened the door wider giving Kobapshiri better access to those inside.

[107] 024 did not give any evidence in rebuttal of the evidence implicating him in intimidating conduct. Tshabalala’s evidence was at direct odds with Sebetha’s in that he claimed to have been speaking to him and not addressing himself to the replacement workers Sebetha was transporting. While it does seem strange that Tshabalala would ignore Sebetha entirely, it is even less probable in my view that he would have ignored the occupants of the vehicle whose presence at work directly undermined the strike. I am inclined therefore to accept that he addressed himself mainly to them and in peremptory terms. Masemola was also directly implicated by Sebetha in telling the workers to get out of the vehicle. All three participants were most probably involved in intimidating behaviour and in directly interfering with replacement workers.

Storming the delivery van in Wrench road

[108] Only one incident of strikers charging towards an oncoming delivery van was part of the video footage shown at the trial. Apart from that incident, du Doit and Schutte identified a number of persons who they claimed had been engaging in that sort of activity during the strike without identifying specific incidents or days when this allegedly occurred with any particularity.

[109] If it had not been for the driver of the van taking evasive action by slipping behind a car travelling nearer to the centre of the road, it is very likely he would have been forced to stop or drastically slow down to avoid a possible collision with one or more of the crowd. The explanation given on behalf of those who were directly implicated in the incident is that they merely were attempting to talk to the driver and were shouting at him as the vehicle passed. It is not obvious that the action of Kunene in raising his hand ought to have been construed as equivalent to the act of running en masse towards the oncoming van, forcing it to deviate from its line of travel as those identified at the forefront of the main group appeared to be doing. Raising a hand to flag down a vehicle without standing in its path, in the absence of other conduct containing an implied threat, cannot be construed as an obstructive or intimidating act, and in the circumstances I do not think it was necessary for him to give evidence in rebuttal. Consequently Kunene’s action in this regard did not constitute misconduct in my view.

[110] The same cannot be said of Maabane, Ndou, G Vuma and B Vuma who were identified as being part of the group that was moving quickly forward to try and intercept the van, but who were thwarted in their efforts to interfere with its passage by the car which approached slightly ahead of the van. Unlike Kunene, by rushing towards the van and brandishing sticks or other objects as they did so, their actions were implicitly threatening in nature. As such, they were attempting to obstruct the normal passage of the van and the manner in which they did so can be construed as intimidating. Ndou did not testify at all in rebuttal and neither did G Vuma (though not intentionally) nor did B Vuma.

Other instances of applicants storming vehicles or behaving in an intimidating fashion towards drivers or using racial abuse

[111] Individuals identified by Schutte during the enquiry as being involved in general intimidating conduct of this kind towards drivers were Tholo, Mashiloane, Ndou, S Tshabalala, Ditire,Thabethe,Ramuhala and Moloi. Du Toit also identified Tholo, Mashiloane, Ditire, Thabethe, Ramahula, Nhlapho as participants in such conduct. To some extent their evidence at the enquiry corroborated each other’s in respect of Tholo, Mashiloane, Ditire, Thabethe and Ramahula implicating them in repeated acts of intimidation or unacceptable acts of abuse during the course of the strike. The fact that Maabane, G Vuma, B Vuma and Ramahula were only identified by Schutte or du Toit on the video footage of the van being charged at the trial probably reflects the fact that at the internal enquiry the company was content to rely on the alleged identification by a secret witness, without obtaining any corroboration from Schutte or du Doit at that stage.

[112] At the trial, du Doit and Schutte confirmed their evidence of Mashiloane’s general intimidating behaviour and though Mashiloane denied having had a stick, this was not put to du Doit and Schutte in cross-examination. Mashiloane’s evidence in rebuttal was difficult to take seriously given his complete reluctance to admit that there was any misconduct committed by the strikers during the strike. The fairness of his late inclusion in the group of persons separated from the rest of the strikers whose plea bargain had been accepted is dealt with elsewhere, but in so far as he was properly included, the balance of the evidence such as it is, supports a finding that he was guilty of intimidating behaviour during the strike.

[113] Du Toit failed to identify S Tshabalala at the enquiry stage, and there is no real explanation why his recollection of S Tshabalala’s role improved with time. Schutte, on the other hand, broadly confirmed what he apparently said in the enquiry including the somewhat distinctive insult of being accused of having a ‘black heart’. S Tshabalala did put forward a possible explanation why Schutte would falsely implicate him and denied carrying a stick but this evidence is of little value when it was never put to Schutte. His account of what he observed of other strikers’ action was such that it affected his credibility of his own evidence. On the evidence, the balance of probabilities favours the employer’s version that he was engaged in intimidating conduct.

[114] Both du Doit and Schutte testified to Ramahula being involved in trying to intimidate drivers and wielding a stick as if it was a weapon directed at them. They had both testified to this at the original enquiry too. At the enquiry no evidence was led in rebuttal. At trial, Ramahula’s evidence mostly consisted of an explanation for his involvement in placing obstacles in the road under the barrier tape and other than bald denials he provided no other evidence to either explain why he would have been singled out or about what he was actually doing during the strike to provide a credible alternative version. In the circumstances, I am inclined to accept that Schutte and du Toit probably did identify him correctly as committing acts of an intimidating nature during the strike.

[115] At the enquiry there was no evidence given of a crowd blockading the entrance to RAM3 and of preventing casual workers from boarding delivery vehicles early in the morning of 25 January 2012. I accept from the evidence of Ahmed and Schutte given during the trial that casual workers were probably being prevented from leaving through the main gate.  Du Toit somewhat unconvincingly said that he had testified to this at the disciplinary enquiry, but the chairpersons failed to capture this evidence in their notes. Moreover, Erasmus was adamant that if testimony was not captured in the notes it was not provided.

[116] Be that as it may, in his evidence at trial, du Doit claimed to be able to recall that Manene, Ndlela, Mogane, G Vuma, Mkhonza, Zide, Sefoka and Moloto were part of the crowd blocking the entrance. All but Mkhonza were previously identified as being involved an unspecified way in misconduct by the secret witness at the enquiry.  Oddly, du Doit was not asked to not provide this eyewitness testimony to the alleged conduct at RAM3 at the enquiry, even though it would have been obviously preferable to the bald identification of these individual by a secret witness. I need to emphasise here that it is not clear from the record of the enquiry precisely what misconduct the secret witness supposedly identified each of those strikers on the list as committing.

[117] Manene, Ndlela and Mkhonza gave evidence in their defence at the trial, though little of their version was put to du Toit during cross-examination. Manene said he arrived late on the morning of 25 January 2012 so could not have been present at the entrance to RAM3 and spent most of his time at RAM1. He agreed seeing delivery vehicles returning to RAM1, though he did not know it was because the driver assistants could not board the vehicles at RAM3. Ndlela and Mkhonza also claimed they were at RAM1.

[118] In assessing the evidence, I am concerned about the reliability of du Toit’s eyewitness testimony more than two years after the event, particularly when it was not given closer to the time at the enquiry when it is reasonable to expect it would have been provided in preference to the sketchy hearsay testimony. There is also no explanation how he came to remember this additional evidence after so long, without being able to refresh his memory against other records. In the absence of some more tangible corroboration or support for this belated oral evidence I have serious doubts about its reliability irrespective of the version of the employees themselves. In the circumstances, du Toit’s evidence on its own is insufficient in my view to be reasonably confident that the individuals belatedly identified in this fashion were probably at RAM3 on the morning of 25 January 2012.

Shoving or pushing of suspected replacement worker

[119] Ndou and Seimela were identified by Schutte pushing a suspected replacement worker back in the direction he had come from. They largely play a supporting role to the person identified as Masemola who first confronts the individual and forcibly pushes him towards the group on the other side of the road. He can be seen jabbing the hapless individual in the back with his stick to speed him on his way.  This is the clearest evidence of coercion and assault being used against prospective replacement workers. It also raises a major concern about the respondent’s failure to identify Masemola, given that this is the most overt act of direct violence on which evidence was adduced.

[120] There is little doubt that this was intimidating behaviour perpetrated by all three of the individuals identified.

The rubble blockade of Wrench road.

[121] Seimela, Mogane, Ramahula, Moloi and Nhlapho were identified by du Toit in video footage placing various objects under a barrier tape strung across Wrench road to the left of the picketing area when viewed from RAM3. The distinctively dressed person identified as Masemola can also be seen towards the end of the footage adding his contribution to the obstacle.

[122] None of these applicants who did testify disputed the role in constructing the barrier. Effectively they defended their actions on the basis that they were effectively just reinforcing the flimsy barrier represented by the barrier tape which the police had erected. A key issue in dispute is who placed the barrier tape across the road that was visible in the late morning of Wednesday 26 when the video footage was taken. Although it was suggested that the time indicated on the footage had not been established as correct, none of the applicants participating in the incident disputed that they were reinforcing the barrier that morning.

[123] It appears from the evidence to be common cause that the police had, as an initial measure, partitioned off Wrench road on 25 January 2011, until a picketing area could be identified. The picketing area that was designated was the open area roughly opposite the entrance to RAM3 where cars were normally parked. The picketing area was only designated on the following day and cars were not allowed to park there. It is evident from the footage of the blockade being constructed that a number of cars are parked on the grass verges on either side of the road up to the point where the barrier tape was strung across the road. It also seems to be undisputed that at a certain point on 26 January the barrier tape was removed and strikers were asked by police to remove the obstructions that had been placed under the tape. There was no unambiguous evidence provided that the barrier tape from the previous day was promptly removed first thing in the morning on Wednesday 26 January.  It seems equally possible that it remained up until sometime later in that morning when police took it down and the designated picketing area was identified as the open area excluding the street in front of it. It is not unreasonable to infer from the evidence that the strikers placing objects under the barrier, were reinforcing a barrier that was still in place rather than creating a new one. This version is also consistent with what was stated in the founding affidavit relied on by the respondent when it launched the interdict.

[124] Consequently, I am not persuaded that the strikers identified as placing obstacles in the road were engaged in creating a barrier to obstruct traffic of their own making.

Other individual misconduct

[125] In the misconduct discussed above, I found that a number of individuals were not guilty of their participation in some of the collective misconduct in question, but some of them and others were accused of other individual acts of misconduct not dealt with above, which also have to be considered. These are discussed below:

125.1 Tholo: Schutte’s testimony against Tholo at the enquiry was relatively detailed and broadly consistent with what he said in court. Tholo’s defiant attitude was evident when he testified. His act of discarding the ultimatums defied managerial authority but it not was not necessarily intimidating conduct, as such. On balance, I am inclined to accept that Schutte’s evidence of his role in other acts of intimidation is more likely to be true given both his attitude in the witness box and willingness to show contempt for management.

125.2 Mashiloane:  The procedural unfairness of Mashiloane’s enquiry is dealt with elsewhere. He was placed with the group of strikers whose guilty pleas were not accepted after evidence implicating him was led in the enquiry by both Schutte and du Toit, who identified him as being directly involved in intimidating activities. Mashiloane did not really put his version to Schutte and du Toit. I am persuaded on the strength of their combined testimonies at the enquiry and at trial, that he featured prominently in their recollection of events and that there was no reason for them to have fabricated evidence against him. Accordingly, he was most probably guilty of intimidating behaviour even if he had been wrongly included in the enquiry at a late stage.

125.3 Mogane: The evidence that he was identified in video footage as part of the group obstructing the entrance to RAM3 was not contested, but it is not clear if that group prevented access and egress of vehicles. He was not identified as committing any threatening acts. I find the evidence against him relating to any of the charges insubstantial and that he was not guilty of misconduct other than participating in an unprotected strike.

125.4 Ndou: The most serious conduct involving Ndou is the evidence of him manhandling a suspected casual employee. He was also identified as stuffing ultimatums down a drain, which could be construed as interference with the conduct of RAM’s operations. Evidence of his interference with a vehicle and abuse of management went unchallenged as he did not testify. In the circumstances he was also guilty of intimidating behaviour in that respect. 

125.5 G Vuma: The misconduct relating to him charging the delivery van is dealt with above. He was also identified as ensuring that documents delivered by management to strikers went down a storm drain, which amounts to interference with the conduct of RAM’s operations. He was going to testify, but apparently was prevented from doing so owing to his untimely arrest. From what I understood, it was not going to be disputed that he had discarded the papers in question, so I think as matters stand the evidence shows that he was guilty of this misconduct too.

125.6 D Twala: There is no good reason to exclude the hearsay evidence of what is recorded in the affidavit of the late Andrew Williams or to disregard the chairperson’s record of his testimony against Twala at the enquiry. The evidence was in the form of an affidavit corroborated by oral testimony in a disciplinary enquiry in which Twala was represented. There was an opportunity for this evidence to be tested and there is a record of the oral testimony. There is no dispute about what was said at the enquiry or about the authenticity of the statement. The evidence is direct evidence of a disinterested eyewitness and is highly relevant. O14 still had the opportunity to offer evidence in rebuttal in these proceedings.  The combination of the evidence on affidavit and the undisputed record of what Williams testified to at the enquiry is sufficient basis in my mind to find Twala guilty of intimidating conduct.

125.7 Ditire: The visual evidence against Ditire corroborated by Schutte and du Doit of him making cutthroat gesture is compelling. Indeed his need to make the gesture repeatedly seems almost compulsive. In one piece of footage he is clearly facing the security and management personnel on the other side of the road when he makes it. I am not persuaded of the other evidence implicating him in an incident of attempting to set fire to a pole with Kobapshiri. However, he repeats his menacing gesture on a number of occasions when he is part of a picket and was clearly guilty of intimidating behaviour.

125.8 Thabethe: There were two components to the evidence against Thabethe:

125.8.1 The evidence implicating Thabethe in putting up a poster that could be construed as intimidating is evenly balanced. There was plenty of photographic material of posters that were displayed in the bundle, but this personal and pointed one was not one of them. While I am dubious that a placard complaining about the change in shifts would have been so formally scripted it is not implausible that he might well have drafted one with that complaint as its theme. I do not think that the evidence of this infraction is enough to find him guilty of putting up the poster in question.

125.8.2 In relation to the other conduct he was accused of, I am concerned that du Doit equivocated over whether he had identified Thabethe as being involved in other generally described acts of intimidation and interference. Schutte was more certain in his identification of Thabethe in this regard and at the enquiry both he and du Doit gave similar evidence against him. It was apparent from their evidence that part of what made Thabethe noticeable was his height.  It must be said that the level of generality of Schutte’s testimony against him is a matter of concern. For example if he shook a stick at drivers or vehicles it makes a difference how close he was to the vehicle. Similarly calling non-strikers sell-outs is a very generic form of insult like calling them rats. This conduct has the quality of expressing a generally hostile and threatening stance towards non-strikers, and as such it had a distinct intimidating character, but how seriously that conduct should be treated on a first occasion needs consideration, in the absence of more specific detail. Thabethe only gave evidence in rebuttal of the testimony concerning the poster. On balance, I believe he was satisfactorily identified as being involved in broadly intimidating conduct attested to by Schutte and du Doit.

125.9 Ramahula: I am persuaded on the strength of the testimony of Schutte and du Toit at the enquiry and at trial, that Ramahula’s role in the strike was one that came to their attention and there was no reason for them to have fabricated evidence against him. His evidence was a bald denial of such conduct and he gave no testimony of what he was other activities he was engaged in during the strike, nor was the evidence of his accuser’s tested except in general terms. On what is available, the evidence tends to show he most probably was guilty of general intimidating conduct towards non-strikers. Du Toit did not corroborate Schutte’s evidence at the enquiry that Ramahula pointed as stick at them and motioned as if he were shooting them, which I would imagine du Doit would have recollected so I am less inclined to accept this.

125.10 Moloi: During the enquiry only Schutte identified Moloi as being involved in intimidating action and also mentioned him as being busy with a tyre which ‘they’ were trying to burn. Du Toit did not identify Moloi in his testimony at the enquiry as being involved with this latter activity or other violent action. He testified to Moloi assisting in blockading the road. At the trial he testified that he witnessed the tyre and pole incident with Schutte. Schutte did not give any evidence on this incident at trial, but this was not explored in the course of his evidence. Schutte did give evidence of Moloi pretending to shoot at people and hurling abuse at management and drivers. At the enquiry one chairperson recorded him as saying that Moloi had been hurling abuse and had been threatening to ‘cut’ people but made no mention of him using a stick to imitate a firearm. At the trial he mentioned the abuse and also that Moloi was using a stick like a firearm. There was much time spent on the question of what kind of bottle Moloi had supposedly been seen carrying. Although it was suggested that the incident of the tyre and pole was a fabrication, Moloi did admit to carrying a bottle or bottles and it was already mentioned by Schutte at the enquiry. On balance, though I feel there evidence of intimidating conduct is not consistent in all respects, I am satisfied that as one of the security guards, whom they worked with, they would have noticed his activity during the strike, and that he probably was involved in an attempt to set fire to tyre and in hurling abuse at non-strikers.

125.11 Gabohewe: Schutte’s evidence of the incident in which Gabohewe accosted him as he was walking along Wrench road, was consistent with what he said at the inquiry. Du Toit’s observation of the event also correlated reasonably well with this version. Although he testified in his own defence, Gabohewe did not call Temakwe who would have been an obvious witness to support his version. On balance I am satisfied Gabohewe probably did approach Schutte aggressively and abuse him and had to be restrained by Temakwe. As such his conduct was clearly intimidating.

125.12 Nhlapho: Both Schutte and du Toit implicated 027 in their evidence at the disciplinary enquiry when events would have beenfresher in their minds. It was common cause that Nhlapho had a plank in his hand during the strike. Whether he used it as a firearm is a matter of contention. Schutte’s evidence in this regard was broadly consistent with what he said at the enquiry.

Summary of findings of misconduct.

[126] By way of summary, the following applicants are found not guilty of misconduct during the strike other than participating in an unprotected strike:

126.1 Manene;

126.2 Kunene;

126.3 Ndlela;

126.4 Mogane;

126.5 Mkhonza;

126.6 Zide;

126.7 Sefoka;

126.8 Moloto, and

126.9 Mphahlele.

[127] The following applicants were guilty of intimidation of non-strikers and, or alternatively interference in the operations of the respondent

127.1 Seimela (intimidation);

127.2 Maabane (intimidation);

127.3 Tholo (intimidation)

127.4 Mashiloane (intimidation)

127.5 Ndou (intimidation and interference);

127.6 G Vuma (intimidation and interference);

127.7 S Tshabalala(intimidation);

127.8 Twala (intimidation);

127.9 Ditire(intimidation);

127.10 B Vuma(intimidation);

127.11 Bontshi (intimidation);

127.12 Thabethe (intimidation):

127.13 Ramuhala  (intimidation);

127.14 Moloi (intimidation);

127.15 Kobaphshiri (intimidation);

127.16 Gabohewe (intimidation);

127.17 Nhlapo (intimidation), and

127.18 Tshabalala (intimidation)

Sanction

[128] In respect of those found guilty, their actions all vary in severity but all are serious enough to warrant their dismissal. This brings me to the question whether the respondent’s failure to take similar action against Masemola warrants a different outcome.

[129] The applicants argue that the respondent has treated them inconsistently by not dismissing Masemola. Du Toit testified that strikers identified as worthy of more serious disciplinary action were identified by viewing the video footage before and during the enquiry. Those who were supposed to be involved in this process included the operational managers of the strikers. It must be remembered that the number of strikers was never more than 135, including the members of the other union at the firm, and it should have been obvious to any of the managers in those departments which of their employees were not present and who might be participating in the strike. This ought to have made identification not such a difficult task.

[130] In all of the video footage, Masemola stands out because of his height and light striped shirt and striped hat. Arguably he is the most distinctive individual appearing in the material shown to the court. He is also active in a number of the incidents for which others were disciplined. He is the initiator of the manhandling of the casual worker, and is clearly visible in the images of that incident. He contributes to the construction of the blockade, He appears to be running to join those involved in the storming of the van in Wrench road, though he is somewhat late for this event. He is identified as one of those involved in the attempt to get casual workers out of the vehicle driven by Sebetha and also of threatening them. Both Sebetha and Chiloane were able to identify him from the video footage and could have testified against him at the disciplinary enquiry had they been asked to do so. The incident involving the van and the incident in which Masemola is one of three individuals attempting to get casual workers out of the car driven by Sebetha were certainly already shown at the enquiry. Further, the company was made aware of Masemola’s identity before the adjournment on the third day of trial. None of the company witnesses could offer an explanation why he had not been identified earlier and no attempt was made to call his manager to explain why it had not been possible or feasible, even by the time the trial reconvened after an interval of more than two months.

[131] The respondent’s attitude in argument is that it ought to be apparent from the evidence that the personnel who viewed the footage were unable to identify him and in any event he received a final written warning like other strikers who are not singled out for specific acts of misconduct. I agree that Schutte and du Doit could not identify Masemola, but it is apparent that little effort was made to involve others betters placed to do so. For example, why was Sebetha, who was directly involved in the one of the serious incidents involving Masmela, was not asked to identify him. The fact that Schutte and du Doit simply said that managers were asked to identify staff in the video footage, but could not do so is simply not a satisfactory explanation of the respondent’s failure to have charged Masemola with offences similar to those the applicants in this matter faced. In fact it raises the question whether this was ever done at all and whether the employer was simply content to let its security personnel pick out the suspects they could.

[132] In Chemical Energy Paper Printing Wood & Allied Workers Union v National Bargaining Council for the Chemical Industry & others[4] the LAC summarised the law on consistent treatment of misconduct with particular reference to mass dismissals:

[20] the principle is correct that all employees who have committed misconduct must be treated similarly unless there is some justification to treat them differently - in cases of collective misconduct  an employer can only act against those employees it can prove to have committed the misconduct complained of.  An employer is therefore obliged, in situations as obtained in this matter, to charge only those employees against whom it has evidence. If such employees are found guilty the employer may impose an appropriate penalty. An employer cannot, in matters such as this, simply dismiss all of its striking employees because some from amongst them committed serious misconduct. As a consequence, some employees who commit serious misconduct may not be charged or when charged, the employer is unable to satisfy the disciplinary enquiry that each of the employees who is charged is in fact guilty of the misconduct. Hence, where there has been collective misconduct and the employer only charges some of the employees because it only has evidence against them and from amongst those charged some are found to have committed the wrong and are dismissed and a few acquitted, it does not and cannot follow that the dismissal was unfair because of any selective application of discipline. An employer can only be accused of selective application of discipline if, having evidence against a number of individual employees, it arbitrarily selects only few to face disciplinary action.

[21] An employer is also not obliged to investigate the identity of each and every employee who may have participated in a wrongful activity and then proceed to take disciplinary measures against all the wrongdoers. An employer need only proceed against those it has evidence against. In Mabinana & others v Baldwins Steel this court held that while only a handful of employees were dismissed despite the large number of persons who had participated in the unlawful act, their dismissal was not unlawful as the employer is not obliged to ensure that it has identified all the perpetrators. Similarly in the matter of SA Commercial Catering & Allied Workers Union & others v Irvin & Johnson this court held that where there is collective misconduct and one employee is acquitted by one chairperson while another employee is convicted by another chairperson this would not amount to differentiation or selective discipline. The court here went on to say that 'some inconsistency is the price to be paid for flexibility which requires the exercise of a discretion in each individual case'. Hence, where a number of employees is dismissed consequent upon collective wrongful conduct, a wrong decision by the employer resulting in an acquittal of an employee who did commit the wrong can only be unfair if it is a result of some discriminatory management policy.”[5]

(emphasis added)

[133] Thus an employer is not obliged to take disciplinary steps except against those employees it believes it has sufficient evidence to warrant that. In this case the question is whether the principle in Baldwins Steel[6] exonerates the respondent’s failure to charge Masemola together with the other twenty seven applicants for serious misconduct. In Baldwins Steel two arguments were advanced on behalf of the employees who had been dismissed following a hostage taking situation. The first was that there were other persons in the company who could have identified more culprits, or at least more persons who could be accused of the same conduct as them because they did not admit to the charges. The court dismissed that argument thus:

“Their failure to identify more people may be criticised for a possible lack of attentiveness (although, given the circumstances, that might in itself be unwarranted), but that can hardly be said to show lack of good faith or an ulterior purpose.”[7]

The LAC characterised, and dealt with the second argument, thus:

“[T]here were other witnesses available to the respondent who could have identified others taking equal part in the hostage holding and intimidation. They were not called and therefore an inference adverse to the respondent should be drawn. It is not clear to me what the adverse inference should be or why an inference should be adverse to the respondent.

[10] The inference that may be drawn from failure to call a witness depends very much upon the circumstances of each case (Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) at 624D–G). In the present matter nothing prevented the appellants from calling witnesses to identify others involved in the intimidation and hostage holding to a degree equal to their own participation. They did not do so. Nothing prevented them from calling the witnesses they say the respondent should have called. Failure to do so may thus also lead to an adverse inference being drawn against appellants.”

[134] What distinguishes Baldwin Steel from this matter is that mere inattentiveness cannot explain the failure to identify Masemola when his role in misconduct was so prominent and distinctive. Indeed, wilful neglect appears to be a more apt description of the respondent’s supposed efforts to identify Masemola. Given the glaring nature of the evidence implicating him, I think the employer in this instance, at least, should have provided a proper explanation why he was not identified in order to rebut an inference that it decided not to treat all employees against whom it had substantial evidence of serious misconduct the same way. In circumstances where there obviously was very compelling evidence available to the employer of misconduct committed by an individual whose appearance was very distinctive because of his manner of dress and his height, then if action is taken against others participating in the same misconduct based on the same evidence, it is reasonable to expect similar action to be taken against that individual too. In such circumstances, it is not simply sufficient to say nobody identified that individual and leave it at that. The compelling nature of the evidence, the seriousness of the misconduct in which the individual was involved in, the quality of the evidence, which allowed the employer to identify other individuals whose images in the video material are far less clear than Masemola’s, all cry out for an explanation why, despite all this, not one of the persons who might reasonably have been expected to be able to identify some of the strikers, such as a manager or supervisor in the departments where he worked, or someone such as Sebetha who was directly involved in one of the recorded incidents was not able to do so at the time. Similarly, if such persons were in fact not approached and asked if they could identify a prominent individual such as Masemola, it is reasonable to expect an explanation why. Despite the fairly lengthy break in the court proceedings no attempt was made to furnish an explanation for the employer’s own failure to identify Masemola, once his identity had been confirmed by the applicants.

[135] In the absence of such an explanation, it is not unreasonable to infer that the employer neglected to treat all the easily identifiable suspects in serious acts of misconduct in the same way, which gave rise to inconsistency in disciplining the strikers involved in misconduct.

[136] Had the discrepancy come to light at the enquiry at a time it could have been sorted out easily by including Masemola in the hearing in the same way that Mashiloane was.  Having raised it at the trial, the applicants seek to achieve a different aim arising from his omission. Instead of trying to ensure that the person who might wrongfully escape a disciplinary sanction does not do so, the applicants seek to escape a disciplinary sanction they ought to receive because he successfully, though wrongfully, did escaped that sanction, which he also deserved. But it must also be remembered that the trial is a de novo enquiry and the applicants are entitled, ex post facto, to challenge the failure of an employer to act consistently. Once it is established that the employer cannot reasonably justify the differential treatment, then the question arises how the arbitrator court should deal with that inconsistency which has allowed some employees unjustifiably to escape probable sanction, while imposing it on others.

[137] One remedy is to place the aggrieved employees in the same position as those who wrongfully escaped sanction, even though the evidence justified it being imposed on them. The difficulty with this is that the consequence is that everyone who was found guilty of misconduct, however serious, escapes the consequences of their misconduct because of those who wrongly escaped the same consequences. The alternative is to accept that they were correctly found guilty and deserved a particular sanction but that they should receive some compensation as recompense for the employer unjustifiably favouring others who ought to have received the same sanction. I believe the latter is more appropriate in this instance, where the better remedy which would have been to ensure the inclusion of Masemola in the same enquiry is now impossible.

[138] I need to stress that it is the extraordinary failure of the employer in the light of manifest evidence that was at hand implicating Masemola and the absence of any plausible explanation why, armed with the evidence of the video footage, he could not have been quite easily identified without embarking on an onerous investigation. Merely asking the most obvious known eyewitness to one of his actions, Sebetha, would have revealed his identity. The company’s failure to do this amounted to a wilful neglect to make the most minimal and elementary effort to ensure consistency of treatment.

[139] A further consideration is that the employer was content to give Komanisi a final written warning for preventing staff from coming forward to collect memorandums. This conduct was clearly interference in the employer’s communication with its employees. This clearly may be considered a reference point of some kind for evaluating the seriousness with which the conduct was viewed.

[140] Most of those found guilty were found guilty of intimidation of one sort or another, but there is clearly a vast difference between say, the type of intimidation involving the generic verbal abuse of strike breakers calling them rats or sell-outs and physically manhandling or directly threatening a casual worker with assault. I do not think they fall into the same category of severity, and I don’t believe that the verbal abuse, except when it took on a personal or racial tone, warranted dismissal. Direct physical acts of coercion or rushing in a group towards vehicles also warranted dismissal as such actions carry at least an implicit threat of possible violence towards the occupants of the vehicle and in any event present a danger to the occupants of vehicles because of the risk of an accident.

[141] , but I am concerned where the evidence was of highly generalised nature without even the location of incidents been identified that even if a striker had moved towards a vehicle as part of a group, the severity of the action would be judged by the context in which that occurred, such as the speed of the vehicle, whether the path of the vehicle was obstructed or the driver felt the need to divert suddenly from his route because of the action and the like. In the absence of more detailed evidence I am reluctant to characterise that misconduct in the most severe light.

[142] With the above considerations in mind the sanctions that ought to have been imposed on those found guilty of misconduct are as follows:

142.1 The 2nd,3rd,4th,10th ,11th, 13th, 14th, 15th ,16th ,17th ,24th 25th, 27th and 28th applicants were found guilty of intimidation involving one or more of the following acts: directly threatening behaviour towards casual replacement workers or non-striking staff; manhandling a casual worker; verbal abuse of a staff member with personal or racial overtones, storming towards a vehicle causing it to divert from its path of travel. The appropriate sanction in each instance of the misconduct committed by the individual in question was dismissal. They are all very serious forms of misconduct and no mitigating factors were adduced. The fact that the employer acted inconsistently and therefore there was an element of substantive unfairness in their dismissals does not mean the primary remedy of reinstatement must be applied. In this instance, given the fact that they were found guilty of serious misconduct warranting dismissal it would be intolerable to require the employer to take them back in its employment. In the light of my findings in respect of Tshabalala’s strike misconduct it is not necessary to deal with his dismissal for insubordination which appears to have been possibly initiated mala fide at the time.

142.2 The 19^th, 22^nd and 23^rd applicants were guilty of general intimidating conduct, but in the light of the sweeping nature of the evidence the seriousness, frequency and severity of their conduct is more difficult to evaluate and it would be inappropriate to say it definitely warranted dismissal. In the circumstances these applicants should have been issued with a final written warning valid for twelve months for intimidating conduct during a strike.

Costs

[143] Given the outcome of the proceedings, I see no reason why one party should as a matter of justice and equity be burdened with the other’s costs.

Relief

[144] I have mentioned above why I believe that reinstatement of those whose misconduct warrants dismissal cannot be justified solely on the basis of the respondent’s inconsistent treatment of these applicant’s vis-à-vis Masemola. However, I do think that in view of the inherent inequity of the more favourable treatment of Masemola as a result of the employer’s indifference about pursuing disciplinary steps against him, an amount of compensation that is some form of a solatium for the hurt of another unjustifiably escaping a sanction he deserved as much as they and which should also prove salutary for the employer to encourage it to respect the principle of consistent treatment in such cases is required. I believe an appropriate amount would be three month’s remuneration for each of the employees dismissed.

[145]  In relation to those guilty of general intimidating conduct, I have taken the following into consideration. The conduct went beyond acceptable levels of active picketing and was of a generally threatening nature but without any indication of its impact or effect on persons it was supposedly directed without any meaningful detail on how severe it was. In the circumstances, a final written warning for intimidating conduct in the course of a strike, valid for 12 months is appropriate.  Bearing in mind that the strike was unprotected and that it was persisted with rather than suspended pending the outcome of the court interdict which determined its protected status, I do not feel reinstatement with full retrospectivity is warranted. Accordingly the period of retrospective reinstatement is limited to 8 months.

[146] In respect of those found not guilty of misconduct, they still participated in an unprotected strike which could have been suspended pending the outcome of the interdict even if they bona fide believed that SATAWU was correct in saying it was protected. Accordingly, their reinstatement is made retrospective for 12 months.

[147] Mashiloane should not have been subjected to the internal inquiry without personally having authorised a waiver of the general plea agreement. His dismissal was both procedurally and substantively unfair. In his case there is no reason he should not be reinstated with full retrospectivity.

Order

[148] The dismissals of the 2nd,3rd,4th,10^th ,11^th, 13th, 14^th, 15^th ,16^th ,17^th ,24^th 25^th, 27^th and 28^th applicants were substantively unfair solely because of inconsistent treatment.

[149] The dismissals of the 19th, Ramahula^nd and Moloi^rd applicants were substantively and procedurally unfair.

[150] The 5^th, 6^th, 8th, 9^th, 12^th, 18^th, 20^th, 21^st and 26^th applicants were not guilty of the charges set out in paragraph 12 of this judgment and their dismissals were substantively and procedurally unfair.

[151] The dismissal of the 7^th applicant was substantively and procedurally unfair.

[152] It is ordered that:

152.1 Notwithstanding that their dismissals were substantively and procedurally unfair, the 2nd,3rd,4th,10^th ,11^th, 13th, 14^th, 15^th ,16^th ,17^th ,24^th 25^th, 27^th and 28^th applicants are only entitled to compensation in the amount of three (3) months’ remuneration calculated at their respective rates of remuneration on their date of dismissal on 10 February 2011 which the respondent must pay within 15 days of the date of this judgment.

152.2 The 19^th, 22^nd and 23^rd applicants are reinstated retrospectively with backpay, on the same terms and conditions applicable to them on 11 February 2011 and with no loss of service prior to that date, provided that the period of retrospective reinstatement shall be a date eight (8) months prior to the date they resume service with the respondent, which must be within 15 days of the date of this judgment.  The sanction of dismissal for each of these applicants is substituted with a final written warning for committing misconduct of an intimidating nature during a strike, valid for 12 months from their respective dated of returning to work.

152.3 The 5^th, 6^th, 8^th, 12^th, 18^th ,20^th , 21^st and 26^th applicants are reinstated retrospectively with backpay, on the same terms and conditions applicable to them on 11 February 2011 and with no loss of service prior to that date, provided that the period of retrospective reinstatement shall be twelve (12) months prior to the date they resume service with the respondent, and they must report for duty  15 days of the date of this judgment.

152.4 Provided the 9^th applicant passed away after the date the applicant’s statement being filed, the respondent must pay into his estate an amount of compensation equivalent to twelve months’ remuneration at the rate of remuneration he received on 11 February 2011. This amount must be paid within 15 days of the respondent receiving details of payment from the applicants’ attorneys of record.

152.1 The 7^th applicant is reinstated retrospectively to the date of his dismissal on 11 February 2011, on the same terms and conditions applicable to him at the time was dismissed by the respondent, provided that the period of retrospective reinstatement shall be twelve (12) months to the date he resumes service with the respondent, and he must report for duty within 15 days of the date of this judgment.

152.2 The payment of backpay to any applicant who is retrospectively reinstated in terms of this order must be paid within 10 days of that applicant resuming work with the respondent.

152.3 The payment of compensation to each of the 2nd,3rd,4th,10^th ,11^th, 13th, 14^th, 15^th ,16^th ,17^th ,24^th 25^th, 27^th and 28^th  applicants must be made within 15 days of the date of this judgment.

[153] No order is made as to costs.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicants: R Edmonds or Ruth Edmonds Attorneys

For the Respondent: M Van As

Instructed by: Werksmans Attorneys.

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