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IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case nr: JA 15/08

In the matter between:

HORACIO TOMAS COSSA .....................................................................................Appellant

(3^rd Respondent a quo)

And

WESTERN PLATINUM MINES LIMITED .................................................First Respondent

(Applicant a quo)

THE COMMISSION FOR CONCILIATION,

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

(1^st Respondent a quo)

M L MATLALA N.O. ...................................................................................Third Respondent

{2^nd Respondent a quo)

JUDGMENT

McCALL A.J.A.:

INTRODUCTION.

[1] This is an appeal against the whole of the judgment and order of Her Ladyship

Pillay J delivered on 22 October 2007.

[2] For convenience, the parties will be referred to in this judgment as follows:

2.1 Appellant as “the employee”;

2.2 First Respondent as “the employer”;

2.3 Second Respondent as “the CCMA”

2.4 Third Respondent as “the commissioner”.

[3] The employee was dismissed by the employer on 25 October 2001 following a disciplinary enquiry into a number of allegations of misconduct. The employee contended that the dismissal was substantively and procedurally unfair and the matter was referred to the CCMA, where it was unresolved. It was then referred to arbitration. After hearing evidence, at some length, the commissioner found that the dismissal was substantively and procedurally unfair and ordered the re-instatement of the employee, together with compensation equivalent to twelve months’ remuneration, other subsidiary relief and costs.

[4] On review, at the instance of the employer, of the commissioner’s award dated 18 July 2005, the Court a quo set aside the arbitration award and made special orders as to costs.

[5] The matter came before us on appeal, after leave to appeal had been granted by the Court a quo on 5 March 2008.

[6] In addition to the appeal there were before us the following applications:

6.1 An application by the employer, dated 15 September 2008, purporting to be an application in terms of Rule 5(17) of the Labour Appeal Court Rules (“the Rules”), for an order dismissing the appeal on account of the excessive delay in serving the transcribed record of the proceedings in the Court a quo. This application was opposed by the employee, who sought its dismissal, with costs.

.

6.2 An application by the employee filed on 6 October 2008, in terms of Rule 12 of the Rules, in which he sought condonation of his failure to comply with Rule 5(8) of the Rules, which requires the record to be delivered within 60 days of the date of the order granting leave to appeal, and an order reviving and reinstating the appeal. That application was opposed by the employer. It was supplemented by a further “Founding Affidavit” by the employee filed on 13 November 2008.

[7] At the hearing it was agreed that this Court would hear the appeal and the applications together, since a decision on the employee’s application for condonation would be dependent, inter alia, on the prospects of success of the appeal.

[8] In his Notice of Appeal filed on 14 March 2008, the employee raised 14 grounds of appeal, all of which related to the substantive fairness of his dismissal and consisted of a list of 14 respects in which it was contended that the learned Judge in the Court a quo had erred in reaching her findings. None of the grounds of appeal raised any question of the procedural fairness of the dismissal. However, in his Heads of Argument and in argument before us, counsel for the employee, Mr. Lengane, sought to raise two grounds of “Procedural Fairness”, which related to the disciplinary hearing which preceded the dismissal and which, he contended, ought to have been addressed by the Court a quo. They were, in essence:

8.1 That the notification with which the employee was furnished to attend the disciplinary hearing lacked sufficient particularity to inform him of the charges and thus afford him a reasonable opportunity to prepare his defence.

8.2 That it was procedurally unfair for the chairperson of the disciplinary tribunal to consult with the employer’s Mr. F. Rangwaga, before arriving at his decision to “convict” and dismiss the employee. Further, that the consultation vitiated the fairness of the disciplinary proceedings in that the consultation took place in the absence of the employee and without his knowledge.

[9] Although, strictly speaking, it was not open to Mr. Lengane to raise these grounds when he did, he was given the opportunity, when the Court adjourned and reserved its decision, to refer the Court, in writing, on or before the 28^th May 2010, to any passages in the record which relate to an alleged irregularity on the part of the Chairman of the disciplinary enquiry in consulting with Mr. Rangwaga. Neither the employee nor his Counsel, Mr. Lengane, took advantage of this opportunity afforded by the Court, but Mr.Snider, for the employer did furnish us with a written memorandum dealing with the issue, for which the Court is duly grateful. I will deal with these alleged procedural issues before considering the issue of substantive fairness of the dismissal.

[10] I interpose here the observation that the appeal record does not comply with Rule 5(15) of the Rules, in that the page numbers of documents and exhibits contained in the record are not reflected in the margin opposite the references by witnesses to such documents and exhibits. This has made it extremely difficult and time-consuming to read and follow the record and makes it necessary to refer, at times, in this judgement to the page references in the appeal record. That record was delivered in two parts, the first consisting, in twenty volumes, of the “Review Record”, which will be referred to as such, and the second consisting of the documents which were necessary to supplement the Review Record for the purposes of the appeal and which were contained in three additional volumes, which will be referred to as the “Appeal Record.”

.

THE SUFFIENCY OF THE CHARGES.

[11]

11.1 In a document headed “NOTICE OF PENDING INVESTIGATION”, (Review Record vol.13, p.1258) the date of which is indistinct, the employee was notified of a pending investigation against him for:

“1. Bribery

2. Fraud.

3. Forgery and uttering

4.Unauthorised use/abuse of company property/funds and/or benefits”.

He was informed that on his return from leave he would be notified of specific detail. It is noted on the document that he refused to sign for it.

11.2 The same four charges were listed in a “Notice of Suspension” dated 26 September 2001 (Review Record p.1259), which the employee also refused to sign.

11.3 In a document dated 27/09/2001 (Review Record pp.1272-1273) seven charges are set out in detail (the first page of the document is missing from my copy of the record), over the signature of Paul Loock, and it is recorded that:

“On the 20 August 2001, a meeting was set up with Mr.Cossa and his representative to try and clear up above alleged irregularities with no avail….”

11.4 The charges are set out in detail in an undated document headed “Charge Sheet” (Review Record p.1279).

11.5 According to the typed record of the Disciplinary Enquiry which records that the hearing started on 2 October 2001 (Review Record vol.9, p.922 et seq) the Chairperson asked the employee if he had time to prepare his case and he answered “Yes”. The employee had a representative present, and, after the employee was advised of his rights, each of the seven charges was read out in detail, after which he was asked whether he understood them, to which he replied “Yes, I understand”.

11.6 After an adjournment the employee was asked to plead to each charge, which he did. (Although it is recorded, in what appears to be the transcribed record of the enquiry (Review Record p.928), that the employee pleaded guilty to the first charge, in another recording of the enquiry (Review Record Vol.13 p.1320) it is stated that he pleaded not guilty to Charge 1). The dates were clarified, after which the complainant’s statement was read out and the enquiry proceeded.

11.7 It does not appear from the record of the disciplinary enquiry that the employee or his representative complained that the charges lacked sufficient particularity and did not afford him a reasonable opportunity to prepare his defence.

11.8 In argument, after all of the evidence had been led at the arbitration, Mr. Lengane did say, (Review Record Vol.8, p. 842 from l.23), on the issue of procedural unfairness, that the employee was notified of the disciplinary enquiry by means of a letter dated 2 October 2001 (Review Record Vol.14 p.1367) informing him that the enquiry would take place on 8 October (which seems to conflict with the record of the hearing on 2 October). This letter sets out the four charges referred to above. Mr Lengane said that when the employee arrived at the disciplinary enquiry on the 8^th “that is exactly what he knew about the enquiry that was instituted against him”. Although he submitted that this was procedural unfairness, Mr Lengane did not appear to take the matter further at that stage.

11.9 It is recorded that at the internal appeal against the finding of the disciplinary enquiry (Review Record Vol.17, p.1373) the only ground of Procedural Unfairness which was raised was; “Claimed that he was not informed by his supervisor”. Under the heading “CONCLUSION’’ it is recorded that:

“Mr. Cossa was requested by his Supervisor RG O’Reilly to assist to get clarity on alleged irregularities under investigation on 20 August 2001.”

11.10 In his award, the commissioner found that the allegations stated in the employee’s suspension notice were “vague” and the employee could not reasonably be expected to prepare a response. He referred to the fact that the employee only became aware of the real facts around those allegations for the first time at the disciplinary enquiry and that these procedural irregularities had “a huge effect” on procedural fairness of the dismissal.

11.11 There does not, however, appear to have been any evidence that the employee was in fact prejudiced by the manner in which the charges were brought to his notice. Certainly when the disciplinary enquiry got under way, and at the arbitration, the employee was fully aware of the detailed allegations against him and did not appear to have had any difficulty in presenting his response.

11.12 There is no mention in the judgement of the learned Judge in the Court a quo of any issues of procedural unfairness having been raised, on review, by the employee.

11.13 Finally, in the Notice of Appeal, no grounds of procedural unfairness are raised.

[12] In all the circumstances, and in the absence of any evidence that the employee was in fact in any way prejudiced by the manner in which the charges were brought to his notice it is not, in my opinion, open to this Court to entertain this issue on appeal.

THE ACTUAL CHARGES.

[13] It will be convenient, at this stage, to deal with the actual charges which were put to the employee (Review Record Vol.9, pp 925- 927), before carrying on to deal with the second procedural issue.

13.1 Charge No1 was:

“Fraud: By posing as Robert Sebohang Maile, ID No. 6001265946089, a South African citizen on date on engagement with the company (The documents prove that you were in fact a Mozambique citizen on day of engagement).”

13.2 Because I take the view that there was, in effect, a splitting of charges involving Charges Nos. 2, 4 and 5, I will not repeat them in detail, save to say that Charges 2 and 4 were both charges of fraud, the former relating to a fraudulent Blasting Certificate and the latter a fraudulent Mine Overseer certificate, both in the name of the said Maile, but with ID No. 6001260102347. Charge No.5 was one of Forgery and Uttering by submitting false Chamber of Mines Certificates.

13.3. The employer did not submit any evidence on Charge No. 3, which was also one of fraud. The commissioner found that the employer had not discharged the onus on it in respect of that charge and the Court a quo did not deal with it.

13.4 On Charge 6, which was one of bribery, the commissioner found the evidence unreliable and that the employer had not discharged the onus on it. The Judge in the Court a quo declined to interfere with that finding and there was no cross-appeal.

13.5 Charge No. 7 read:

“Unauthorised use/abuse of company property/funds and/or benefits by misusing your company fleet management bank card.”

There followed a further allegation under this charge which was probably intended to refer to all of the charges and which reads:

“all the above actions lead to the irretrievable breaking of the trust relationship between himself and his employer” This was, however, put to the employee, at the disciplinary enquiry, as part of Charge No.7.

ALLEGED CONSULTATION BY THE CHAIRPERSON.

[14] At the conclusion of the disciplinary hearing the Chairperson, Mr. A.C. Mauve (“Mauve”) signed a document dated 24/10/2001 (Review Record Vol.13 p.1362) headed “CONFIDENTIAL” which contained, inter alia, under the heading “CHAIRMAN’S VERDICT”, the following sentence:

“(For the disciplinary procedure involving Mr.H.T.Cossa, the accused and Mr. P.Loock the complainant). Decision by the Chairman (Mr.A.C.Mauve) in consultancy with the Human Resources Representative (Mr.F.Rangwaga) on the 24 October 2001.” (my underlining)

There followed a paragraph headed “FACTS ESTABLISHED”, summarising the Chairperson’s findings, and finally a paragraph headed: “VERDICT” which recorded the following:

“GUILTY: of fraud, bribery, forgery and misuse of the company fleet card.”

[15] It was on the basis of the above sentence referring to “consultancy” with Mr. Rangwaga that Mr. Lengane submitted, before us, that it was procedurally unfair for the chairperson to consult with the employer’s Mr. F Rangwaga before arriving at his decision to convict and dismiss the employee, and he relied on the heading “CONFIDENTIAL” in support of his contention that this vitiated the fairness of the disciplinary process in that it took place in the absence of the employee and without his knowledge. He referred, in support of his submission, to the case of Steelmobile Engineering (Pty) Ltd v National Union of Metalworkers of SA & another (1992) 1 LCD 91(LAC).

[16] According to Mr.Snider’s research, this issue was first raised in argument at the conclusion of the arbitration (Review Record Vol.8 p.845). The issue was not, however, dealt with by the Commissioner in his award. As was pointed out by Mr.Snider, the following paragraphs in the employee’s answering affidavit in the review application seem to be directly contrary to his submission that Mauve committed an irregularity by consulting with Mr. Rangwaga: (Appeal Record Vol.1 p.79):

8.1 I recall Mauve testifying during the arbitration proceedings that the decision to dismiss me was his own. This fact is also recorded in the second respondent’s award.

8.2 I am advised that submissions will be made on my behalf at the hearing of this matter that, on its own, the fact that the decision to dismiss was Mauve’s rendered my dismissal irregular and unfair in that my employer was thereby precluded, or precluded itself, from deciding whether I should be dismissed or not.”

[17] The issue of the Mauve’s consultation with Mr Rangwaga was not dealt with by the Judge in the Court a quo in her judgement and, as I have said, was not raised as a ground on appeal to this Court. On these grounds, alone, I am of the view that it is not open to us to consider this point on appeal.

[18] However, in his Note to the Court on this issue, Mr. Snider made a number of other points which have a bearing on the question as to whether or not Mauve’s consultation with Mr. Rangwaga may have constituted an irregularity and, in case this matter should go further, and, in any event, to set the record straight on this issue, I will deal with that issue.

[19] It appears that, throughout the disciplinary hearing, Mauve was guided by a checklist headed: “Western Platinum Mine” and “Presiding Official Procedure” {Review Record Vol.14 pp.1369-1370). Item 16 provides:

“Adjourn to evaluate whether the Accused is guilty/not guilty (Consult with HR and the Representative), when and where required.”

Item 20 provides:

“Adjourn to decide the appropriate corrective disciplinary action. Consult HR and the Representative.”

It is apparent, therefore, that the employer’s disciplinary procedure provided that, after hearing the evidence and argument and summarising the evidence, the Chairman was entitled to consult with the Human Resources Official and the employee’s Representative, if and when required, before reconvening to convey his decision, and could do so again before deciding upon the appropriate disciplinary action.

[20] In this case, it appears from the transcript of the disciplinary hearing, (Review Record Vol. 12, p.1244) that Mauve, after summarising his factual findings on the evidence, informed those present, including the employee, who had addressed argument to the enquiry, that he would (Review Record Vol. 12, p.1244. 1.25):

“Adjourn to evaluate whether the accused is guilty or not guilty and I will consult with the HR and the representative if needed, when and where required, and then we will reconvene… to convey a decision of guilty or not guilty to the accused.”

[21] Clearly, then, the employee was aware that the Chairman, Mauve, might consult with the Human Resources Official and the employee’s Representative, if he considered it necessary to do so. That Mauve did consult with Mr. Rangwaga, the Human Resources Representative, only appears from the “CHAIRMAN’S VERDICT” document, referred to above, relied upon by Mr Lengane. It does not appear from the record as to whether or not Mauve also consulted with the employees’ representative, neither is there any indication as to what may have been discussed during the consultation. It does appear from the record (Review Record Vol.12, p.1245, l.9) that Mauve read out the “Verdict” document, including the reference to consulting, to those present at the enquiry. The employee and his representative were both present, because, after having read his verdict, Mauve asked them is there were any mitigating circumstances (Review Record Vol. 12, p.1246, l.30 – 1247, l.2), after which the representative presented argument on mitigating circumstances.

[22] There is no substance, therefore, in the contention that the fact that the document was marked “Confidential” meant that the consultation was without the employee’s knowledge. In this regard, it may be noted that a further document (Review Record Vol.14, pp1371-1372), which is also marked “Confidential”, records the “Sentence” and the fact that “the accused, is hereby informed of his right of appeal”.

[23] At no stage during the proceedings leading up to the review in the Court a quo was Mauve cross-examined about the consultation with Mr. Ragwana, nor was it suggested that he was in any way biased. Indeed, during his cross- examination by Mr. Lengane, during the arbitration (Review Record Vol.2. pp 174-176) he made it clear that he would not have been influenced by the employer in arriving at a decision

to dismiss.

[24] The case of Steelmobile (supra) relied upon by Mr. Lengane is clearly distinguishable. In that case it was found that the chairman of a disciplinary hearing, in breach of the employer’s disciplinary code and procedure, had failed to take the decision himself and had conferred with other members of management in regard thereto. Furthermore the chairman of the appeal allowed the person who had presided at the disciplinary hearing to participate at the appeal proceedings and had allowed a number of people, including the employer’s industrial relations advisor, to assist him in coming to his decision. The chairman had also had a substantial involvement in the circumstances surrounding the offence charged. The Industrial Court concluded, and the Labour Court agreed, that these deviations created the impression that the employee did not receive unbiased hearings.

[25] In the present case, Mauve followed the employer’s laid-down procedure in consulting with the Human Relations Official. There is no suggestion, and certainly no evidence, that Mauve was biased or that he was in any way influenced by whatever occurred during the consultation. In fact it appears from the record that he had already arrived at, and disclosed, his findings on the evidence before the consultation took place, which findings were consistent with his eventual findings that the employee was “guilty”. Mauve openly disclosed to the employee that the consultation might take place and that it had taken place. Mauve was not involved in the circumstances surrounding any of the offences with which the employee was charged.

[26] I am satisfied that there is no merit, in this case, in the contention that the Chairman’s consultation with Mr.Ragwana rendered the disciplinary proceedings procedurally unfair or otherwise constituted a reviewable irregularity.

[27] The appeal on both grounds of procedural irregularity, insofar as it may have been competent to raise such grounds, would, therefore, fail.

[28] I shall proceed, then, to deal, to the extent that I consider necessary, with the facts which gave rise to the disciplinary enquiry against the employee and to his dismissal, the findings of the commissioner in CCMA arbitration, the findings of the Court a quo and the prospects of a successful appeal against the latter findings.

THE FACTUAL BACKGROUND.

[29] There is no concise summary of the relevant facts either in the record, the findings or the Heads of Argument and it is therefore necessary for me to give a summary of the facts as briefly as possible, from the plethora of un-annotated and inadequately indexed evidence.

29.1 According to the employee’s evidence in the arbitration (Review Record Vol 5, p391 et seq):

29.1.1 His name is Horatio Tomas Cossa and he was born in Mozambique in 1963.

29.1.2 He has lived in South Africa since 1985.

29.1.3 When he entered South Africa in 1985 he deliberately concealed from the immigration officers the fact that he was entering the country for the purposes of seeking employment. He was in possession of a Mozambican Passport with the I.D. No.3102822.

29.1.4 In 1986, with the assistance of his uncle, he went to the Bophuthatswana Consulate in Johannesburg. His uncle took all of his documents and went into an office and, after six weeks, he got his ID in which, “miraculously”, his date of birth was given as three years older, ie.1960, and his name was reflected as ROBERT SEBOHANG MAILE (which name will hereinafter be abbreviated to “MAILE” when it is referred to in this judgment). He used this document when he obtained employment with Impala Platinum Mines in 1985.

29.1.5 In 1996 he obtained employment with Western Platinum Mines Limited, the employer, using the green ID book which appears in the Review Record, Vol. 13 pages 38 and 40. It reflects his name as MAILE, his I.D. No. as 600126 5946 08 9, that he is a S.A. Citizen and that he was born in SOUTH AFRICA on 1960-01-26. It was issued on 1995-03-22.

29.2. In the cross-examination of the employee (Review Record, Vol.6) it was revealed that:

29.2.1 (p543, l.7-544, l.5) when he obtained the document in Bophuthatswana in 1986 he did not fill in any forms;

29.2.2. in 1990 he made application to become a Bophuthatswana citizen (p544, l.16 – p.545 l.17 and the form in Vol.17, p.1676-7) in the name of COSSA;

29.2.3. in 1995 the employee applied for a South African I.D. in the name of MAILE, which is the one referred to in 29.1.5. above.(pp.578-582);

29.2.4. he admitted that in 1994 he provided the Department of Mineral & Energy Affairs with false information, when obtaining a blasting certificate, the subject of Count 2, in the name of MAILE (pp.586-587);

29.2.5. on the 11^th June 1999 the employee collected from Mmabatho a document reflecting his South African citizenship in the name of COSSA;

29.2.6 on his C.V. the employee reflected his name as MAILE and his date of birth as 26 January 1960 (p.656 l. 12 and Vol.14 p.1405);

29.2.7. he admitted that in 1995 and 1996 he obtained the Chamber of Mines of South Africa Certificates in Review Volume 13, pp 52,52,54 and 55 in the name of MAILE (P.680 et seq );

29.2.8. although he denied (pp.711 et seq) that he wished to apply for Mozambican citizenship as reflected in a letter written by Mr. Kendall dated 22 December 1998 (Review Record volume 14, p.1381), he admitted (p719) that a document purporting to be an application for renunciation of South African citizenship my MAILE (Review Record vol. 17 p. 1681) was in his handwriting;

29.2.9. on 8 October 1996 be signed an Agreement of Service with the employee in the name of MAILE (Review Record vol.15, p1493.), but when it was shown to him he claimed that it was the first time he had seen it (pp.739-743).

29.3 According to the evidence of Mr PJ Scheepers in the arbitration, (Review Record Vol.1, p.47et seq), he met the employee when he applied for a vacancy with the employer as a shift supervisor. The employee produced his CV referred to above, which reflected his name as MAILE. Scheepers said that had the employee told him that in fact his real name was COSSA he would not have recommended him for employment. He gave the reasons why, including the tax implications. He said (p.74) that in terms of the South African tax structure there was a deferred pay structure for Mozambicans in terms of which for the first six months they did not pay any tax but thereafter 2%, he thought, of his salary was remitted to his country. He was sure that the employee paid South African income tax under the name of MAILE.

29.4 According to the evidence of Mr. Charles Kendall (Review Record Vol.1, p79 et seq), who was then Human Resources Manager of the employer, the employee, who he knew as MAILE, approached him and asked him to give him a letter stating that the company had no objection to him changing citizenship. The reason he gave was something to do with the inheritance of his wife in Mozambique. Kendall gave him the letter referred to in paragraph 28.2.8. above. The employee said nothing about his name. Although the employee denied under cross-examination that he had sought to change his citizenship it is significant that, in keeping with what Kendall said, in the document at p.1681 he gives as one of his reasons for renouncing his South African citizenship: “My wife must return home for business undertaking which her father gave her.”.

29.5 It may be gleaned from the documents that what prompted the internal investigation into the employee’s conduct was a report made by Mr. H.C. Flannigan who was the payroll co-ordinator at Lonmin Platinum Mines, at the time. In a statement handed in at the disciplinary enquiry he recorded that:

29.5.1 the employee joined the company on 8 October 1996;

29.5.2 on engagement at the company his name was MAILE, with ID 6001265946089, a South African Citizen;

29.5.3 during 1999 he changed his name of MAILE to COSSA with

ID6302155314085;

29.5.4. it was then established that he was a Mozambican;

29.5.5 the company was supposed to pay deferred pay to Mozambique for the period from the date of engagement to the date that it was established that he was a Mozambican;

29.5.7 the company was prejudiced through the fact that it did not know that he was a Mozambican citizen and had to go and see the relevant authorities to rectify the situation.

29.6 Flannigan was cross-examined at some length at the disciplinary enquiry (Review Record Vol.10, p.1045 et seq). He said that after the employee’s name was changed all his certificates were still in the name of MAILE and he brought that to Management’s attention because it was his duty to make sure that the employee and his records (coincided). He clarified the position regarding the agreement between the South African and Mozambican governments (p.1052) which was that for the first six months the employee is exempt from tax or deferred payment and from the seventh pay period they had to deduct 60% of his pay and pay that over to TEBA which held it until the expiry of the contract. The employee collected it when he went home. He said they were in contravention of that agreement. When the employee brought the papers through to say he was a Mozambican citizen they started deducting deferred pay but the employee kept taking advances on the deferred pay, which was contrary to the agreement.

29.7 Mauve gave evidence at the arbitration and was cross-examined at length regarding his conduct of the disciplinary enquiry (Review Record Vol.2, p105 et seq). In the course of that cross-examination, Mr. Lengane, appearing for employee, said (p.197, l.14) that the employee would admit that he falsified his identity, but that when he did so he did not intend to join the employer and therefore did not commit fraud against the employer. Confirmation of the fact that the employee obtained the ID. No.600126 5946 089 posing as MAILE through the furnishing of false information was apparently first obtained from the Department of Home Affairs in a letter dated 2001-08-31 written by M M NEETLING on behalf of the Director General, which was Annexure B to Mr. Loock’s s statement at the disciplinary enquiry (Review Record, Vol.13, p.1295)

29.8 Mr. A.E. Potgieter, a senior administration officer at the Department of Home Affairs, dealing with all the fraud in the department, gave evidence for the employer, in the arbitration, which was not challenged in cross-examination (Review Record Vol.3, p241 et seq). He was shown the ID No.600126 5946 08 9 issued 09 1977-06-24, in the name of MAILE, born on 1969-01-26, (Review Record Vol.13 at p.1277). He was shown a further ID with the same No. 600126 5946 08 9 but issued on 1995 03-22 Vol. 13 pp.1294 and 1296) and said (Review Record Vol. 3, p.242, l.29):

“Of my investigation I find this document is a legal document that was issued by the department but it was (inaudible) with false information it was given us – to the Department of Home Affairs. This document cannot be used for any identification purposes and at the moment it does not exist anymore”.

He explained that the ID with the number 600126 had been cancelled and blocked because the employee had given false information. The employee then applied for a new ID document in the other name of COSSA and that is how they found that the information that was given to them was false. Potgieter was referred (at p.245) to an ID Document No. 630215 (incorrectly referred to in the record as 620215) 5314 080 5 (Review Record Vol.13 p.1297), which was issued on 2000-02-01 to COSSA, as a South African citizen born in Mozambique on 1963-02-15, and said that this document was issued to the employee when he applied for naturalisation in Bophuthatswana and got it. He thought he applied in 1991 and in 1995 all the TBVC countries got new identity documents. He said that the department would have known that the person given the number 630215 was the same person who held the document with ID number 600216. He identified an old Bophuthatswana Citizen document (Vol. 13, p.1298) in the name of MAILE born in the Republic of South Africa, with ID. No. 600215 0 1023 4 7 as being a false document as the employee was born in Mozambique. He reiterated that ID No. 600126 5946 08 9 issued on 1997-06-24 (p1277) in the name of MAILE, born in South Africa, ( a replacement of the earlier one issued on 1995-03-22 (pp.1294 and 1296), was obtained using false information. Finally, he identified a naturalisation certificate dated 21 Oct 1991 issued by the former Boputhatswana authorities to COSSA,(Review Record Vol.17, p.1675 ) which reflected his nationality before registration as being a Shangaan from Mozambique, and which application was granted pursuant to a form signed by the employee on 09.05.1990 in the name of COSSA.(Review Record Vol.17, p1676 et seq). Potgieter said it was a criminal offence to hold two identities.

29.9 In cross-examination, in the arbitration, the employee conceded that he had applied for the two South African I.D. Documents under the 600126 number, in the name of MAILE, after he had applied for South African citizenship in the name of COSSA, and used false information to do so (Review Record Vol.6, p.578 et seq).

29.10 With regard to Count 7, the misuse of the Company’s Fleet Management Card, it would appear that at the disciplinary hearing no oral evidence was led by the company on this charge. What was before the hearing was a Statement by Mr. Loock, the complainant, to which were attached three annexures dealing with the petrol consumption (Review Record Vol.13, p 1273 and pp.1287to1293,) Mr Loock was questioned about this charge by the employee’s representative (Review Record Vol.10, p.997 et seq) and the employee, himself,(p.998,l.24) complained that it was unfair that he was being penalised twice by having his card confiscated and being charged for the abuse of it (p.998, l23). He did not, however, appear to dispute what was recorded in the annexures to Mr. Loock’s statement. In his findings, the Chairman, Mauve, said (Review Record Vol. 12 p.1243 and see also Vol.13, p.1361):

“These reports show the following inconsistencies:

The accused’s car is reported to have used 52,45 litres per 100 kilometers during the period June 2001 to July 2001.

The accused’s car is reported to have used 29,41 litres per 100 kilometres during the period April 2001 to May 2001 and the audiometer readings presented on the reports are inconsistent.

The complainant suggests that no passenger car could use this excessive quantity of fuel.

On the accused’s side there is no substantiation for the correct use of the accused’s card. No justification is presented by the accused as to why these inconsistencies exist on his records.”

In the internal appeal (Review Record vol.14, p.1382) the employee’s representative said:

“We accepted that the appellant did overspend ---- The card issue should not have been part of the charges. We feel that it is a duplication.”

11. In the arbitration, Mr J van Staden, the manager administration finance of the employer, gave evidence regarding the employee’s use of his motor vehicle card. (Review Record Vol. 3, p.254 et seq and Vol.19, p.901-Vol.20, p.1974 ). He said the card was from STANNIC and paid for fuel and maintenance. He identified the document in Review Record, Vol.13, p.287, as being the report they received from STANNIC. At the bottom right hand corner on p.1289, under “STATISTICS” was to be found the actual consumption, and he said:

“In this particular instance the actual consumption is 52 litres-and in effect 52 litres per 100 kilometres, where the national average is just under 10.”

He said members of staff had a spending limit on their card of R2 500,00 per month, averaged over the financial year. For the month of July 2001 (p.1289) the employee spent R3 960,00 (it actually shows R3 980.47) and from 2001-03-25 to 2001-04-24 (p.1293) R3 305,53 (actually R3 305,52). He referred to two instances when he called the employee in, one relating to repeated amounts of R45,00 for top-up oil which the employee said was for car wash and the other when he had a telephone call from a garage to say they had impounded his card because the designated vehicle on the card was not the one into which fuel was put. He warned the employee that should this continue they would impound his card and in, he thought, July 2001, he did so. There were also irregularities in the recorded odometer readings (pp.260-263). In cross-examination, it was put to Van Staden that the employee would deny that there was ever a rule (regarding the spending limit). He would say that from time to time he would exceed the limit of R2 500,00 because he would use the vehicle to attend courses and other business the company sent him on, which was not disputed by van Staden. In re-examination on the second occasion when he gave evidence (Review Record vol.20, p.1967) van Staden said that the fuel consumption was excessive over a period of time, not only March to July, and did not improve after he spoke to the employee on two occasions. In his evidence- in- chief the employee said he doubted the authenticity of the documents reflecting the petrol consumption, but he did not challenge the figures. He denied that there was a rule regarding the R2 500, 00 limit to expenditure.

THE ARBITRATION AWARD (Appeal Record, Vol.1, p.32 et seq)

[30] After summarising the evidence of all of the witnesses called in the arbitration hearing, the commissioner found that the employer did not present any evidence at all in respect of charges 2, 3 and 4. He commented that it was trite that the arbitration hearing constitutes a new hearing, or hearing de novo, not a review of the disciplinary hearing, and that an arbitrator should not be confined to the evidence led at the disciplinary enquiry, referring, in this regard to Gibb v Nedcor Ltd (1998) 19 ILJ 364(LC) and Telkom SA v CCMA & Others (2002) 23 ILJ 536 (LC). The implication of the above decisions was, he said, that the employer must produce evidence before the arbitration de novo, to prove that the employee committed the particular transgressions for which he was dismissed. He then found that, in respect of charges 2,3,and 4, the employer failed to discharge the onus cast on it by s.192(2) of the Labour Relations Act.

[31]. With regard to charge 1, that of Fraud for posing as MAILE, ID No.6001265946089, a South African citizen on date of engagement, when the documents proved that he was in fact a Mozambican citizen on that day, he referred to the evidence of Potgieter that the employee had been a citizen of Bophuthatswana by naturalisation since 21 October 1991 under the name of COSSA and that he became a South African citizen in 1995 with the incorporation of the TBVC states into South Africa. On that basis he found that the employee did not pose as a South African citizen at the time of his engagement in October 1996, “but he was a South African citizen”. He went on to say (Appeal Record Vol.1 p.51):

“It would appear from the testimony of Potgieter that the identity document was issued to the employee on the basis of false information, but I do accept that the document presented to the employer by the employee in 1961 was a legal document”.

He concluded that:

“The evidence confirmed that the Department of Home Affairs was aware that Robert Sebohang Maile and Horatio Thomas Cossa was one and the same person. Accordingly, I find that that the employee did not pose as Robert Sebohang Maile, but was in fact Robert Seboheng Maile in 1996 when he was employed by Western Platinum Mines, using an identity documents that has been legally issued to him by an organ of State.”

[32]. On charge 5 the commissioner found that the employee did not submit false Chamber of Mines certificates as alleged by the employer, notwithstanding the fact that the employee had admitted that he had obtained them all in the name of MAILE.

[33]. The commissioner’s findings on charge 7, relating to the abuse of the petrol card, dealt mainly with van Staden’s evidence on the employee’s use of petrol in excess of the alleged limit of R2 500,00 a month. He found that there was no evidence of a rule about the use of petrol cards and that the employee was not aware of such rule and the consequences of not complying with the rule. He referred to the fact that van Staden was the only person to testify about the alleged abuse of a petrol card. He pointed to certain inconsistencies in the records, referred to the fact that van Staden was not present when the employee filled up, and said he was “never able to say that it was a suspicion or a certainty that the employee abused the petrol card”. Finally, he found that the sanction against the alleged abuse of company fleet cards was not applied consistently and that no disciplinary action had been taken against the general manager Mr.Moolman who also had warning flags against his transaction reports. He said that there was no satisfactory evidence that the employee abused his fleet card.

[34]. As I have already indicated, the commissioner found that the dismissal of the employee was substantively and procedurally unfair and ordered his reinstatement and other relief.

THE REVIEW AND THE JUDGMENT OF THE COURT A QUO.

[35]. It is significant that in the founding affidavit in the review application Mauve said:

“ 11.At the time he was employed he represented himself to be one Robert Sebohang Maile {“Maile”) and presented, inter alia, an identity document, various certificates relating to qualifications which he allegedly held and a Curriculum Vitae which reflected this identity.” (Appeal Record p.Vol.1, p.8 para.11) All of this was admitted, without qualification, by the employee in his answering affidavit (Vol.1. p.77, para.6).

[36]. In her judgment in the court a quo, the judge first referred to the contention of the employee, reiterated on appeal, that Mauve had not found the employee guilty of any of the charges. This contention is without substance. An examination of the record of the disciplinary hearing clearly shows that Mauve, however awkwardly he may have expressed himself, both at the enquiry and in cross-examination at the arbitration, did make factual findings on each of the charges and did arrive at a decision on the employee’s guilt on each charge. Although he may have lumped them together in recording his finding and verdict (Review Record Vol. 12, p1246), he had previously made individual findings on each charge (see also Review Record, Vol.13 ,pp.1357-1362). In any event, as both the commissioner and the learned Judge observed, the arbitration was a fresh hearing.

[37]. In dealing with charge 1, that of fraud by posing as MAILE, a South African citizen on the date of engagement, the learned judge said it seemed that all the parties understood the charge to question both the employee’s citizenship and his name. She referred to the fact that Mr. Snider conceded in this heads of argument that the employee did not pose as a South African citizen when the employer engaged him, and proceeded to determine whether he posed as MAILE and whether he misrepresented his identity when he was interviewed and subsequently engaged.

[38]. I do not intend to enter into the debate as to whether or not the employee was a South African citizen when he applied for employment with the employer. The undisputed evidences establishes conclusively that the employee was born COSSA in Mozambique, and unlawfully obtained identification documents from Bophuthatswana, in 1986, which reflected his name a MAILE. He assumed this identity and thereafter persistently represented that he was MAILE. He applied for, and obtained, two South African Identity documents in the name of MAILE, born in South Africa, the second of which he used when applying for employment with the employer. He gave his name as MAILE in his C.V. and signed his Agreement of Service in that name. In the meantime, in 1990, he had made application for Bophuthatswana citizenship in the name of COSSA and, according to him, he collected a document reflecting his South African Citizenship in the name of COSSA on 11 June 1999. He had a South African I.D. No. 630215 5314 08 05 in the name of COSSA issued on 2000-02-01 reflecting his place of birth as Mozambique and his date of birth as 1963-02-15.

[39]. I cannot fault the reasoning of the learned Judge in the Court a quo in finding that when the employee was employed he dishonestly represented that he was MAILE, a person born in South Africa on 1960-01-26. The commissioner clearly misdirected himself in finding that, although the 600126 Identity Document was issued on the basis of false information, he accepted that when it was presented to the employer in 1996 it was a legal document. Even accepting the factual existence of what appeared to be a legal document, the point was that the employee dishonestly used it to represent that he was in fact the person MAILE, born in South Africa, when he knew very well that he was COSSA born in Mozambique. Likewise, the commissioner misdirected himself in finding that the person did not pose as MAILE, but was in fact MAILE in 1996 when he was employed by the employee. The employee was not in fact MAILE and was not in fact entitled to use the Identity Document issued in that name to identity himself as MAILE, when he well knew that his real name was COSSA and that he was born in Mozambique

[40]. Fraud is a wilful perversion of the truth made with intent to deceive and resulting in actual or potential prejudice to another. The perversion of the truth by the employee is common cause. Flannigan gave evidence of the actual prejudice caused to the employer, in that the employer was in breach of the agreement between the South African and Mozambican authorities and he had to take steps to rectify the position. Scheepers gave instances of other potential prejudice.

[41].In my view there is no merit in the contention that the employer knew of the dual identity of the employee and waived the right to rely on it in order to discipline the employee. There is no clear evidence as to precisely when the employer became aware of all of the relevant facts relating to the dishonest conduct of the employee in relation to his identity. Mr. Snider submits in his Heads of Argument that confirmation of the malfeasance of the employee was only received by the employer in the letter addressed to Mr.Loock by MM Neetling of the Department of Home Affairs dated 2001-08-31 (Review Record Vol.13,p.1295), just over a month before the disciplinary enquiry commenced. In the leading case of Collen v Rietfontein Engineering Works 1948(1) SA 413 (AD) at 436,Centlivres C.J. said:

“the onus of proving waiver is strictly on the party alleging it and he must show that the other party with full knowledge of his right decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it”.

The employee did not discharge that onus..

[42]. In my view the Court a quo was correct in finding that the employee was guilty on charge 1 and, on that basis alone, there is no prospect of success on appeal.

[43]. The learned Judge in the Court a quo dealt with charges 2 and 4. She found that in view of the Court’s finding on charge 1 it followed that the fraud referred to in charges 2 and 4 perpetuated the misrepresentation and the employee should have been found guilty on these charges. It is common cause that the employee presented the certificates bearing the name of MAILE with the relevant ID number as being his certificates when he knew that his name was not MAILE and that the I.D. in question had been obtained giving false information. I agree that this was merely a manifestation of his continuing misrepresentation of his true identity. He should therefore not have been found guilty of charges 2 and 4 because that amounted to a splitting of charges. (see “R. v Heyne & Ors. 1956(3)SA 604 (AD)”). In any event, the fact that the employee was found guilty on these charges does not have any effect on the overall prospects of success on appeal.

[44].The same considerations apply with regard to charge 5 which was forgery and uttering of false Chamber of Miners Certificates on date of engagement. Although the

learned Judge criticised certain of the commissioner’s findings on this charge she concluded that the certificates were, in any event, invalidated by the employee’s dishonesty which was proved in respect of the first charge. I agree with that and, whether or not the commissioner’s findings were correct with regard to the other alleged defects in the certificates, that also has no bearing on the overall prospects of success on appeal.

[45].With regard to charge 7, the learned Judge did not deal with the commissioner’s findings with regard to the employee exceeding the permitted monthly limit on the use of the petrol card. I do not intend to enter that debate, save to say that it is improbable that the employer did not place a limit on the use of the card and that the employee did not know of such a limit. With regard to the excessive fuel consumption, I do not know where the learned Judge got the figures she refers to in paragraph [26] of her judgment. I have dealt with this charge at some length in paragraph 29.10 and 11 above. The figures presented at the disciplinary enquiry and at the arbitration showed that the employee’s petrol consumption in April/May and June/July 2001 far exceeded the national average. The employee and his representative did not contest these figures as such. It was common cause that the employee’s petrol card had been taken away from him. Indeed, it appeared that the employee’s complaint was not that there had not been irregularities in the use of his petrol card, but that he had already been punished for that by having his card taken away and should not have been further disciplined. Also, that punishment was not meted out equally, as Mr. Moolman had not been disciplined for his abuse of his card. In my view, the taking away of an employee’s means of committing a misdemeanour (in this case his pertol card) does not bar the employer from further disciplining the employee for that demeanour. As far as Mr. Moolman is concerned, the mere the fact that he was not disciplined did not, in the absence of an investigation into his conduct, prove that there was unequal treatment or that disciplining of the employee was unfair.

CONCLUSION.

[46]. It is clear that there was an irretrievable breakdown in the relationship between the employer and the employee. It is regrettable that the only sanction, in the circumstances, had to be dismissal. Had the employee made a clean breast of his admitted misrepresentation and deception, things may have been different, because it appeared that, in some respects, he was a valuable worker who had progressed to a senior position. However, he chose to contest the charges against him and made unwarranted accusations against his employers, accusing witnesses of lying and fabrication, and the company of racism. In all the circumstances I am satisfied that an appeal against the judgment of the Court a quo would not succeed.

[47].Service of the appeal record should have been effected on 3 June 2008 but was not effect until 13 August 2008, more than two months after the expiry of the sixty day period prescribed by Rule 5(8). In terms of Rule 5(17) the appeal was deemed to have been withdrawn. When the record was filed it was seriously deficient, as I have already mentioned, because of the failure to comply with Rule 5 (15). On that ground, alone, it could have been rejected. Although the delay in filing the record was not vast, the weakness of the prospects of success, is, in my opinion, decisive. In my judgment condonation must be refused and the employee must pay the employer’s costs arising out of his application for condonation and of the abortive appeal.

[48]. I have referred to the fact that the employer brought an application for an order dismissing the appeal. In my view that application was unnecessary since, in terms of Rule 5(17), the appeal was deemed to have been withdrawn. I consider that that application should be refused without any order as to costs.

ORDER.

[49]. I make the following order:

1. The appellant’s application filed on 6 October 2008 for an order condoning the appellant’s failure to comply with the time period prescribed by Rule 5(8) of the Rules of this Court and for the reinstatement of the appeal noted by the appellant on 14 March 2008 is refused and the appellant /applicant is ordered to pay the first respondent’s costs of the application and of the abortive appeal.

2. The first respondent‘s application dated 15 September 2008 for an order dismissing the appeal instituted by the appellant is refused, without any order as to costs.

______________________

McCall AJ

I agree:

______________________

Waglay DJP

I agree:

____________________

Musi AJA

For Appellant:

Mr. K. Lengane instructed by Maserumule Attorneys.

For the First Respondent: Mr. A.N. Snider instructed by Cliffe Dekker Hofmeyr Inc.

Date of Hearing:21 May 2010

Date of Judgment: 20 August 2010

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