---

FLYNOTES: LABOUR – Dismissal – Circumstantial evidence – Alleged use of clock-card to allow illegal miner to exit the underground – Employers in mining industry compelled to deal with illegal mining problems decisively – Facts permitted more than one inference – Commissioner finding that circumstantial evidence relied upon by Harmony was insufficient to establish guilt – Application to review award dismissed.

 

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not reportable

Case No: JR 1457/19

 

In the matter between:
HARMONY GOLD MINING COMPANY LIMITED	Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION	First Respondent
FAIZEL MOOI N.O.	Second Respondent
LEBOGANG MOROKENG	Third Respondent

 

Delivered:        This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 10 July 2023

 

JUDGMENT

 

TLHOTLHALEMAJE, J

Introduction and background:

 

[1]             The applicant seeks an order reviewing and setting aside the arbitration award issued by the second respondent acting under the auspices of the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA).

 

[2]             The applicant further seeks the reinstatement of the review application which had lapsed by virtue of the provisions of paragraph 11.2.7 read together with paragraph 16.1 of the Practice Manual of this Court. This was on account of the applicant’s failure to file its replying affidavit within six months from the date of the filing of the third respondent’s answering affidavit. The third respondent has opposed the review application.

 

[3]             The third respondent (Mr Morokeng) is an erstwhile employee of the applicant having commenced his employment with effect from 2012 as an Assistant Boilermaker. On or about 30 May 2018, the applicant preferred allegations of misconduct against Morokeng, related to dishonesty and failure to report for duty[1]. Following a disciplinary enquiry held on 11 September 2018, the chairperson issued an outcome in terms of which Morokeng was found guilty of the allegations of dishonesty in respect of the alleged use of his clock-card by an illegal miner to exit the underground.

 

[4]             An internal appeal lodged on 26 September 2018 by Morokeng was dismissed on 2 October 2018. Aggrieved Morokeng on 4 October 2018 referred an alleged unfair dismissal dispute to the CCMA. On 24 October 2018, a certificate of outcome was issued declaring the dispute as unresolved. The dispute came before the Commissioner for arbitration, who in turn concluded that the dismissal of Morokeng was substantively unfair. The applicant was ordered to reinstate Morokeng retrospectively, together with back-payment in the amount of R68 602.68. It is this arbitration award which is the subject of these review proceedings.

The reinstatement application:

[5]             The application for condonation and reinstatement was necessitated by the applicant’s failure to timeously file a replying affidavit in the review application, and after Morokeng had lodged an application in terms of section 158(1)(c) of the Labour Relations Act[2] (LRA) on 29 July 2020. The applicant attributed the failure to a genuine error as it had instead of filing a replying affidavit, filed a ‘notice of archiving’. It contended that it had immediately corrected this error by filing the required replying affidavit on 30 July 2020. After the late filing of the replying affidavit, Morokeng had filed an objection thereto. However upon a condonation having been filed by the applicant on 11 August 2020, Morokeng failed to formally oppose the application.

[6]             An applicant seeking the reinstatement of a review application which has lapsed is required to demonstrate good cause for the non-compliance with the provisions of the Practice Manual.[3] A determination of whether good cause was demonstrated entails an exercise of a discretion by the Court, it has been held that when deciding whether good cause has been demonstrated, the Court has a discretion which must be exercised judicially upon the consideration of all the relevant factors, which include inter alia the degree of lateness, the explanation therefor, the prospects of success and the importance of the case^[4]. These factors are interrelated, and are not individually decisive and must be weighed in relation to each other.[5] The overall consideration of whether the Court should grant an indulgence in circumstances where its time frames were not complied with is the interests of justice.[6]

[7]             I am satisfied that the applicant has proffered a reasonable and acceptable explanation for the delay in filing the replying affidavit. Inasmuch as the delay was extensive, it is my view further that upon being made aware of the omission, it had acted promptly by filing the replying affidavit. Clearly the applicant as required took immediate steps in correcting the error, and it cannot be said that on the whole, it was supine in prosecuting the review application.

[8]             To the extent that the applicant’s prospects of success are to be dealt with below in detail, it is my view that in the light of the reasonable explanation proffered, and further having had regard to the facts and circumstances of this case, the interests of justice dictate that in the light of the importance of this case and the issues to be dealt with, that the late filing of the replying affidavit be condoned, and that the review be dealt with and disposed of on its merits.

The evidence:

[9]             The evidence presented before the Commissioner was as follows;

9.1           The applicant’s Gold Investigating officer, Mr Johannes Manoko testified that on 3 May 2018, he received a tip-off that Morokeng and his colleague, a Mr Joaoa Macuacua, would be exiting from underground through different exit points, with the latter exiting via the Surface bank in the Surface Resuscitation Centre (Centre). It was alleged that both Morokeng and Macuacua were in possession of gold bearing material.

9.2           Whilst Manoko was waiting at the Centre, he received further information that Morokeng was in fact waiting at the surface having exited underground through the turnstiles and had requested to be brought to the Centre. Upon being brought to the centre, Manoko searched him but found no gold bearing material in his possession. Manoko released him after recording his employee number.

9.3           Some moments later, Macuacua arrived at the Centre in the company of an ‘escort’. An escort is ordinarily another employee from underground who would have assisted another who needed medical attention at the Centre. A search was then conducted on Macuacua by Manoko and another security officer, Mr Blom. His ‘escort’ was searched by Mr Patrick Ramodumo (a Senior Security Officer). When asked for his clock card, the ‘escort’ produced one, from which his photograph, name and company number were not clear. Ramodumo despite the suspicious clock card produced by the ‘escort’, took his details on a piece of paper, in which his name was recorded as ‘Lebogang’ and his company number as ‘Z127 2909’.

9.4           After he was searched, the ‘escort’ then proceeded to the paramedics at the Centre where his details were also taken by  Mr Vusi Fusi, a paramedic employed by Netcare and stationed at the applicant’s premises, and who had also testified before the Commissioner in this regard.

9.5           When Ramodumo went to Manoko’s office to complete an incident or verification report, and after he had handed Manoko a piece of paper on which he wrote the ‘escort’s’ name, it was then discovered that the employee number and name provided by the ‘escort’ as recorded by Ramodumo on a piece of paper were identical to that of Morokeng. The ‘escort’ had turned out to be an illegal miner, who had acted as Macuacua’s escort with the intention of exiting the premises from underground undetected. It was further contended that Macuacua had faked illness for the ‘escort’ to take him to the Centre.

9.6           It had further transpired that notwithstanding the obviously suspicious nature of the clock card the illegal miner had produced, he was searched and released without more, including not confiscating his suspicious clock card or taking a picture thereof. The basis upon which Manoko concluded that the ‘escort’ was an illegal miner was the company number and name written on a piece of paper, which happened to be the same as Morokeng’s.

9.7           Ramodumo’s contention in releasing the ‘escort’ despite these anomalies was that he did not have reason to suspect anything, because he (the illegal miner) looked like an ordinary employee, ‘was not panicking’ and was further in his full mine PPE gear. He further confirmed that at no stage whilst searching the ‘escort’ and taking his details despite the anomalies with the card, did he make any attempt to verify those details at the time, including noting the date of allocation of the card.

9.8           Further investigations after viewing the CCTV footage in the area revealed that the illegal miner was with Macuacua underground from level 105 station until level 73 where Morokeng also got into the lift (referred to as ‘cage’). Manoko alleged that the three were seen having a conversation for a while until they went in separate directions upon reaching a particular area. Manoko however conceded that it could not be seen from the CCTV footage that Morokeng had in fact handed over his clock-card to the illegal miner. He however held the view that the clock card could have been handed over to the illegal miner when the three met and entered the lift underground before going their separate ways.

9.9           Further investigations had revealed that Morokeng was previously issued with three clock-cards, being in 2014, 2015 and December 2016. It was contended that when new cards were issued, despite Morokeng having alleged that he had reported them as damaged, records did not so reflect, and all that was recorded was ‘ADT allocation’ which meant that the clock card was not damaged but was re-issued because it was reported as missing or stolen. This meant that unlike in instances where a clock card was damaged, the employee would not have been required to return the old card. There was however no explanation as to why it was not recorded as lost or stolen on the system, except in 2015, when Morokeng had reported the clock-card as being damaged. Manoko could not explain why the reason for re-issuing of cards was not properly recorded.

[10]         Morokeng’s testimony was that on the day in question, he had reported for his shift and was on his way to the surface to collect hopper clamps as instructed by his supervisor the previous shift. Whilst on surface, it was at that point that he was approached by the security personnel and subsequently ‘paraded’ for a search at the Centre. He confirmed having been subjected to a search by Manoko on the day in question. Morokeng had further conceded as per the CCTV video evidence that he got into the same lift with Macuacua and the illegal miner but denied knowing the latter or having given him his clock card or having met them earlier prior to entering the lift. He had denied having acted as Macuacua’s escort or having had any contact with the illegal miner. He had nonetheless conceded that the details that the illegal miner had recorded were indeed his own but contended that he could not explain how the illegal miner or anyone at the applicant’s premises could have obtained his details.

[11]         Morokeng conceded that he spoke to Macuacua as they were colleagues. He further denied that he had at any stage reported his card as missing as all three he had changed over the years were damaged and he had handed them over when he was issued with new ones. He had no knowledge as to the reason one of his damaged cards was not properly recorded as damaged. He further denied that he was not on duty on the day in question, as he was exonerated on that charge and only found guilty of dishonesty.

The Commissioner’s findings:

[12]         The Commissioner having acknowledged the problem of illegal miners and further having accepted that Morokeng was seen from the CCTV footage entering and exiting the lift with Macuacua in the company of the illegal miner, found that there was no basis to conclude that Morokeng had assisted the illegal miner out of the premises by giving him his old clock card, or giving the card to Macuacua to assist the illegal miner to exit the premises.

[13]         The Commissioner further accepted Morokeng’s evidence that once a clock-card was replaced for whatever reason, the old card was deactivated and could not be utilised at the applicant’s access points. The Commissioner rejected any suggestion that Morokeng could have retained the old cards reported damaged and concluded that the  circumstantial evidence relied upon by the applicant was insufficient to establish guilt on the part of Morokeng, hence a finding that the dismissal was substantively unfair.

The grounds of review, the legal framework and evaluation:

[14]         The principles applicable when determining whether an arbitration award is reviewable are trite. The enquiry is whether the conclusions reached by the commissioner on the available evidence falls within the band of reasonableness.[7] It has been repeated in several authorities[8] that a review of an award is permissible only if the arbitrator has misconceived the nature of the enquiry or arrived at an unreasonable result. Even more pertinent to this case in the light of the principal grounds of review advanced by the applicant, is that a material error of fact as well as the weight and relevance to be attached to any particular fact, is not in and of itself, a justification for an award to be set aside on review’[9].

[15]         In further re-emphasising the distinction between a review and an appeal, in Duncanmec (Pty) Ltd v Gaylard NO and others[10] it was held that the role of a reviewing court is not to evaluate the reasons of a commissioner with the purpose of establishing whether it agrees with those reasons, but it must rather evaluate whether the impugned decision is of such a nature that no reasonable decision-maker could have arrived at. It was added that an award would satisfy the reasonable test, if it is supported by the evidence.

[16]         In the light of the common cause facts that the Commissioner in this case was confronted with circumstantial evidence, the law regarding the drawing of factual inferences in civil cases is well established  as set out in Cooper and Another NNO v Merchant Trade Finance Ltd[11] as follows;

‘It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. In a criminal case, one of the "two cardinal rules of logic" referred to by Watermeyer JA in R v Blom is that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. This rule is not applicable in a civil case. If the facts permit of more than one inference, the Court must select the most "plausible" or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.’

[17]         As a starting point, and to the extent that the facts of this case raised important concerns surrounding the monumental problems posed by illegal mining activities (or by the so called zama-zamas), there can be no doubt that indeed employers in the mining industry are compelled to deal with these problems decisively whenever possible. This is so in the light of the devastating consequences of illegal mining on the overall sustainability of that industry; on the country’s economy; and most importantly, on the sustainability of employment in that industry.

[18]         Clear evidence has been documented revealing that in most instances, illegal mining has become a highly sophisticated operation with willing collusion with mine employees at all levels of mining operations from underground to surface. Despite employers having placed mitigating measures in place to curb the scourge, illegal mining activities continue relentlessly, as aided and abetted by employees. It is against this background that it is accepted that employers are compelled in all instances where proven, to act harshly against those employees, as clearly the latter’s conduct irretrievably breaks down any trust and employment relationship.

[19]         Inasmuch as employers are compelled to act harshly against its own employees who are guilty of colluding with these marauding zama-zamas, the primary consideration always remains that of doing so within the four corners of fairness as demanded by the provisions of section 23(1) of the Constitution,[12] read with sections 185(a) and (b), 186 and 188 of the LRA.

[20]         The question that arises in this case is whether in line with Cooper, the facts permitted more than one inference, from which the Commissioner selected the most "plausible" or probable inference which favoured the applicant on whom the onus of proof rested, and which onus was discharged. Aligned to this enquiry is whether in the end, it can be said that the Commissioner’s decision fell within a band of reasonableness in the light of the evidence before him.

[21]         As already indicated, the applicant relied on circumstantial evidence in justifying Morokeng’s dismissal. In the light of the nature of the evidence presented at the arbitration proceedings and the conclusions reached, the applicant in seeking a review of the award contends that the Commissioner committed a gross irregularity when weighing the probabilities of the circumstantial evidence led; failed to consider the essential aspects of the circumstantial evidence and ultimately arrived at an unreasonable decision. Furthermore, the applicant contended that the Commissioner failed to properly assess Morokeng’s credibility as a witness, particularly since the latter was evasive during his testimony.

[22]         An issue that ought to be disposed of to the extent that the applicant sought to find a connection in Morokeng’s alleged misconduct relates to the charge of not reporting for duty. The Commissioner had accepted from the final findings of the chairperson of the internal enquiry that Morokeng was exonerated on this charge.

[23]         In these proceedings, the applicant’s contention was that Morokeng despite having reported for duty, was not at his workplace as testified by his supervisor Mr Matabane (The Artisan Boilermaker). Matabane had nonetheless conceded that it was not unusual for him not to find Morokeng at his work station. He had conceded that he on occasion allocated work to Morokeng and other employees to fetch material from the surface, which tasks he in certain instances, he would have allocated during the previous shift. He however contended that on that specific day he did not know what specific task were allocated to Morokeng.

[24]         Other than the fact that the chairperson of the enquiry did not specifically make a pronouncement on the charge of Morokeng’s alleged absence from work, Matabane’s evidence in my view did not take the applicant’s case any further, other than demonstrating that in view of his concessions, there was nothing unusual about Morokeng’s absence at his workstation. Furthermore, there was nothing in his testimony in which he specifically mentioned that he did not give Morokeng any instructions or allocated tasks to him in the previous shift. All that he could say was that he did not know what specific tasks were allocated to Morokeng on that specific day. It is therefore not correct that Morokeng was not on duty on the day in question or that he was not allocated tasks to go to surface.

[25]         Even if there was to be any connection between the absence of Morokeng from his workstation and the conduct of Macuacua and the illegal miner, it was common cause that Morokeng met them in the lift between levels 105 and 107 and was also observed having a discussion with Macuacua. Nothing however turned on the two having had a conversation particularly since there was further no evidence to indicate that Morokeng spoke and handed Macuacua or the illegal miner his clock card.

[26]         Of course, the Commissioner was obliged to have regard to the probabilities that Morokeng may have given the illegal miner his clock-card whilst they were in the lift. This is in circumstances where upon being searched and questioned as an ‘escort’ at the Centre, the illegal miner had produced a suspicious card and recorded his name and company number which details were those of Morokeng as recorded on a piece of paper by Ramodumo.

[27]         Morokeng’s testimony was that he did not know how the illegal miner got hold of his personal information as he had at all material times, been in possession of his own clock card which was last issued in 2016. In this regard, despite it being contended in any event that the ‘escort’ was an illegal miner, not much evidence was proffered in that regard to the extent that it was common cause that after he was searched, he was thereafter released. As Manoko had testified, despite suspicions having been raised, not much of an investigation was conducted, to establish the illegal miner’s identity, how he had entered and exited the mine premises, despite the availability of CCTV cameras and all the applicable procedures in that regard. Manoko’s retort that the alleged illegal miner could have entered and exited the premises in the same way as he came was not sufficient, nor that he did not know, or that he failed to inspect the CCTV videos from all access/exit key points, simply because the applicant had too many employees using those access points. Aligned to these lapses as already indicated, are Ramodumo’s failures to take all measures necessary to verify the ‘escort’s’ details rather than just simply taking his name and company number, prior to releasing him. The fact that the details on the clock card produced by the illegal miner were suspicious, particularly from the unclear photograph, clearly required more vigilance and interrogation by Ramodumo, especially since on Manoko’s version, he had received a tip-off that people were coming from underground in possession of gold bearing material.

[28]         It is not suggested that these lapses on the part of Ramodumo, Manoko and others meant that it was the end of the matter. Evidence, no matter how circumstantial demonstrating Morokeng’s own culpability if any, ought to have been properly evaluated from which all probabilities could be drawn. Issues raised by the applicant’s witnesses as to how the illegal miner was in possession of a clock card bearing the same details as those of Morokeng, or how he had entered and exited the premises, were based on conjecture. No effort was made by the applicant and its security officials, to present evidence demonstrating that Morokeng did not return his old card when he was re-issued with new ones, or that the card produced by the illegal miner was initially issued to Morokeng. Clearly more than conjecture was required in circumstances where the security personnel who had issued those cards ought to have confirmed that indeed Morokeng did not return the old damage clock card or that he had reported them as stolen when that was not the case. To merely suspect that he had kept damaged or stolen cards from 2014 into 2018 is in my view far-fetched. Inasmuch as it was argued that there was no evidence that Morokeng did not hand in his damaged clock card, equally so, there was no evidence that he had not done so. An ambiguous entry into the record that the card was “ADT allocation’ is clearly meaningless and unhelpful for any inferences to be drawn therefrom.

[29]         Evidence presented, and to the extent that Macuacua was dismissed, which dismissal was confirmed by the CCMA, clearly points to him being complicit in enabling the illegal miner to enter and exit the premises. It was the evidence of the applicant as I understood it, that Macuacua had feigned illness, had refused assistance from his supervisor to be taken to the Centre, and had however turned up at the Centre with what was said to be an illegal miner. The role of Morokeng on the other hand remains speculative in view of Manoko’s evidence that for the illegal miner to exit from underground through the turnstiles, this also would have required the use of biometric scanners and for the illegal miner to scan his clock-card, even if he was acting as an ‘escort’. Morokeng’s evidence that a clock card was de-activated when a new one was issued was uncontested, and again Manoko contended that there was no explanation as to how the illegal miner was able to exit the shaft without biometric access, or leave from the Centre to the main exit, when these access and exit points were manned by security personnel, monitored by CCTV cameras, and further where there was a requirement for employees even from the Centre, to exit by clocking out. It follows that nothing turned on the applicant’s contention that something ought to be read into the fact that Morokeng and the illegal miner used two different exits from underground to surface.

[30]         Against all the above uncertainties and speculations relied upon by the applicant, the Commissioner in the light of the facts that permitted more than one inference, selected the most "plausible" or probable inference which even if it was possible favoured both parties, in the end meant that the applicant had not discharged the onus of proof. In National Union of Mineworkers v CCMA & others[13] the Court reiterated the principle that in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability and may, by balancing probabilities, select a conclusion which seems the more natural, or plausible conclusion from amongst several conceivable ones, even though that conclusion may not be the only reasonable one. In this case, even if the conclusion reached by the Commissioner may not have been the only reasonable one, it was nonetheless the most plausible or probable in the circumstances.

[31]         The contention that the Commissioner failed to take into account the importance of the rule against assisting illegal mining activities equally ought to be rejected as he had indeed acknowledged the seriousness of the problems arising from illegal mining activities. In the light of these conclusions, it follows that the award of the Commissioner based on the material before him, fell within a band of reasonableness. Consequently, the review application ought to fail.

[32]         I have further had regard to the facts and circumstances of this application, and upon a further consideration of the requirements of law and fairness, I am of the view that there is no basis for any award of costs to be made.

[33]         In the premises, the following order is made:

Order:

 

1.               The late filing of the applicant’s replying affidavit is condoned.

 

2.               The applicant’s review application is reinstated.

 

3.               The application to review and set aside the arbitration award issued by the Second Respondent is dismissed.

 

4.               There is no order as to costs.

 

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

 

APPEARANCE:
For the Applicant:	A Kruger, of Webber Wentzel Attorneys.
For the Third Respondent:	M. Bayi, of Bayi Attorneys.

---

---