Court name
Labour Court Main Division
Case number
50 of 2012
Title

Namdeb Diamond Corporation (Pty) Ltd v Smith (50 of 2012) [2013] NALCMD 13 (19 April 2013);

Media neutral citation
[2013] NALCMD 13
Coram
Hoff J












REPORTABLE






REPUBLIC
OF NAMIBIA



LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: LCA
50/2012





In
the matter between:






NAMDEB DIAMOND
CORPORATION (PTY) LTD APPELLANT



and



BAREND
SMITH RESPONDENT











Neutral
citation:
Namdeb Diamond Corporation (Pty) Ltd v Smith
(LCA 50/2012) [2013] NALCMD 13 (19 April 2013)







Coram: HOFF J


Heard: 05
April 2013


Delivered: 19
April 2013











Summary: Question
of law – includes a finding of fact made by a lower court which
no court could reasonably have made ie where there was no evidence
which could reasonably support such a finding of fact or where the
evidence is such that a proper evaluation of that evidence leads
inexorably to the conclusion that no reasonable court could have made
that (factual) finding – Rationale underpinning this approach
is that the finding in question was so vitiated by lack of reason as
to be tantamount to no finding at all.



Respondent dismissed
during disciplinary hearing inter alia for the unauthorised
use of property belonging to his employer (appellant) – The
undisputed evidence was that respondent presented a fire-extinguisher
belonging to the appellant when respondent took his private motor
vehicle for a roadworthy test at NaTIS – Testing officer
informed respondent personally that vehicle (a kombi) cannot pass
test since fire-extinguisher belonged to a company and was not
mounted inside the vehicle as required by law – Testing officer
subsequently reported incident to appellant – Respondent never
testified in own defence during arbitration proceedings.







Arbitrator failed to make
a specific finding in respect of whether or not the evidence
presented established the unauthorised use of property belonging to
the applicant – This must be inferred from the finding of the
arbitrator that the respondent was dismissed without a valid and fair
reason.







The undisputed evidence
presented at arbitration proceedings does not support the finding
that the evidence did not establish that the respondent had
used the fire-extinguisher in an unauthorised way –
This appeal thus relates to a question of law on the basis that the
finding of fact made by the arbitrator was a finding (having regard
to the undisputed evidence) which no court or arbitrator could
reasonably have made.







The appeal succeeds on
this basis.









ORDER





(a) The finding by the
arbitrator that the appellant did not prove on a preponderance of
probability that the respondent was guilty of the unauthorised use of
the said fire-extinguisher is set aside.







(b) The finding by the
arbitrator that the respondent was dismissed without a valid and fair
reason is set aside.








(c) The order by the
arbitrator reinstating the respondent ‘with all his benefits
before his dismissal’ is set aside.








(d) The award granted in
favour of the respondent in respect of losses in the amount of N$143
184 is set aside.









LABOUR JUDGMENT









HOFF J:







[1] The respondent, a
senior security officer, employed by the appellant was dismissed at a
disciplinary hearing after he had been found guilty of the
unauthorised use of company property and the unauthorised use of
company time.







[2] After unsuccessful
conciliation proceedings the matter was referred for arbitration. The
arbitrator held that the dismissal of the respondent was unfair,
ordered that the respondent be reinstated and awarded compensation in
the amount of N$143 184 in favour of the respondent. The appeal lies
against the ruling of the arbitrator.







[3] It is common cause
that the respondent was the owner of a motor vehicle described as a
kombi and that this motor vehicle was taken to the Namibia Traffic
Information System (NaTIS) for the purpose of obtaining a roadworthy
certificate.







[4] The motor vehicle was
taken by the son of the respondent, Elton John Smith, on 28 December
2011, 3 January 2012 and on 17 January 2012 to NatTIS. The
respondent, himself took the motor vehicle to NaTIS on 10 January
2012. What transpired at NaTIS on this day formed the basis of the
charges against the respondent at the disciplinary hearing.







[5] Mr Rudolf Kharigub an
official employed at NaTIS testified, during the arbitration
proceedings, that on 10 January 2012 the respondent brought his kombi
for a roadworthy test. His testimony was that the law requires that a
motor vehicle which transports passengers must have a
fire-extinguisher which must be mounted inside the vehicle. When the
respondent’s fire-extinguisher, which was not mounted, was
retrieved from underneath a seat and handed to him, he noticed that
it was marked with a black marker ‘Namdeb Head Office’.
On further inspection he also noticed a couple of stickers of Namdeb
on the fire-extinguisher.







[6] He testified that he
told the respondent that he would not accept the fire-extinguisher
because it belonged to a company and that it was not mounted inside
the vehicle. He then recorded the following defects on his control
document: ‘1. Parking brake. 2. Fire-extinguisher
missing (belong to Namdeb) one in vehicle’. He testified that a
few days later the son of the respondent returned with the kombi with
a brand-new fire-extinguisher on which was engraved ‘Smithies
or Smithies Transport’ and he passed the motor vehicle.







[7] Mr Kharigub testified
that after the respondent had left on 10 January 2012 he phoned a
person at Namdeb, one Immanuel Basson, and enquired from him whether
Namdeb ‘nowadays’ gave old fire-extinguishers to
employees to use. Mr Kharigub, who was previously employed by Namdeb,
stated that the practice at Namdeb was that property which the
company did not need any more would be stored in a salvage yard in
order to be auctioned at some later stage. Mr Kharigub testified that
he explained to Immanuel Basson what had happened when the
respondent’s vehicle was brought in for a roadworthy test.







[8] Mr J J Esterhuizen
(an employee of Namdeb and respondent’s supervisor) testified
that during the afternoon of 10 January 2012 a report was made to him
telephonically and he was informed that the respondent was at NaTIS
that afternoon where he had tried to put his private motor vehicle
through a roadworthy test and that the respondent presented a
fire-extinguisher that was marked ‘Namdeb Head Office’.







[9] Two days later, on 12
January 2012, he informed the respondent about the allegation and
respondent replied that it was untrue. They drove to the residence of
the respondent where the respondent opened his motor vehicle and
presented to him two fire-extinguishers, one very small and a new 1,5
kilogram fire-extinguisher. None of these fire-extinguishers bore any
marks of Namdeb. He informed the respondent that he would in any
event investigate the allegation.







[10] Mr Esterhuizen
testified that he subsequently obtained a statement from Mr
Kharigub of NaTIS in which Mr Kharigub confirmed the allegation
against the respondent. In the statement Mr Kharigub also confirmed
that the fire-extinguisher in question was a 1,5 kilogram
fire-extinguisher and that when he confronted the respondent he was
informed that it was an old fire-extinguisher.







[11] Mr Kharigub also
presented him with a copy of the certificate of roadworthiness where
it was indicated that the time when the roadworthy test took place
was between 15h42 and 16h00. Mr Esterhuizen testified that during his
investigation he established that the respondent bought a new 1,5
kilogram fire-extinguisher from Nova Marine on 11 January
2012.







[12] The son of the
respondent testified during the arbitration proceedings in respect of
occurrences other than on 10 January 2012 and his evidence was of no
assistance to the respondent since the incident on 10 January 2012
formed the basis of the subsequent disciplinary hearing and was also
the relevant incident in respect of which the arbitrator based her
findings.







[13] The respondent
himself did not testify during the arbitration proceedings.







[14] Mr Coetzee, who
appeared on behalf of the respondent, submitted that the issue for
determination by the arbitrator was firstly, whether the respondent
was in possession, albeit unauthorised possession, of the appellant’s
fire-extinguisher on 10 January 2012, and secondly, whether
the respondent’s dismissal was fair having regard to the
provisions of section 33 of the Labour Act 11 of 2007.







[15] The arbitrator in
her analysis of the evidence presented during the arbitration
proceedings criticised the evidence of Mr Kharigub in the following
respects:







Firstly, the arbitrator
recounted that during cross-examination Mr Kharigub testified that
‘we decided to report the matter’ and that Mr Kharigub
when referring to ‘we’ meant that himself and his
supervisor, but never during the arbitration proceedings the witness
Kharigub mentioned that he informed his supervisor. I shall accept
that what the arbitrator meant by ‘arbitration proceedings’
is a reference to the evidence- in-chief, since Mr Kharigub during
cross-examination testified that before reporting the incident to
Namdeb, he had first informed his supervisor about it. I can find no
merit in this criticism.







[16] Mr Kharigub
testified that he had given the respondent a document which he called
a ‘receipt’ on which he had recorded the defects of the
motor vehicle of the respondent. The arbitrator during her analysis
of the evidence stated that when Mr Kharigub was asked during
cross-examination what had happened to the receipt that the applicant
had brought back to him he said that he was not sure whether the
applicant brought the receipt back or not, but he could not remember
what had happened to the receipt’.







The arbitrator in her
analysis continued as follows:







The
witness Mr Kharigub stated that he could remember the incident very
well but his evidence pertaining to the receipt was vague’.







[17] What is clear from
the evidence is that the receipt given to the respondent is a
document for the convenience of the respondent and is not an
important document needed by NaTIS. The only benefit in returning
such a document when a vehicle comes for a re-testing is that it
makes it easier for the testing authority to locate the control
document in respect of a particular motor vehicle. In my view the
fact that Mr Kharigub was, in view of the arbitrator vague in
respect of his evidence relating to the receipt, is of no
consequence.







[18] The arbitrator also
made much of the fact, in her analysis, that the witness, Mr
Kharigub, only wrote on the receipt the two defects and did not write
on the receipt, as he did on the control document, that the
fire-extinguisher belonged to Namdeb. If Mr Kharigub failed to write
on the receipt that the fire-extinguisher belonged to Namdeb this,
for the same reason stated supra, is of no consequence. What is
important in my view, and to which the arbitrator herself referred
to, is that the respondent was informed by Mr Kharigub that he would
not accept the fire-extinguisher because it belonged to
Namdeb and that it was not mounted inside the motor vehicle.







[19] The arbitrator
remarked that on ‘material matters’ the witness Kharigub
were not sure of the facts. The material and a crucial aspect of the
arbitration proceedings was whether or not the respondent presented a
fire-extinguisher belonging to Namdeb in his effort to obtain a
roadworthy certificate from NaTIS.







[20] In respect of this
very important issue the arbitrator made no categorical finding.







[21] What the arbitrator
referred to as ‘material matters’ when read in context of
the testimony presented at the arbitration proceedings were in my
view irrelevant matters.







[22] The arbitrator also
in her analysis relies on the fact that the witness Esterhuizen found
no supporting evidence (ie evidence supporting the evidence of
Kharigub) that the respondent presented a fire-extinguisher belonging
to Namdeb on 10 January 2012.







[23] In my view it is not
surprising that Esterhuizen found no fire-extinguisher marked
‘Namdeb’ or ‘Namdeb Head Office’ in the motor
vehicle of the respondent. What would have been surprising if there
were evidence that such a
fire-extinguisher, with Namdeb markings on it, had indeed been found
in the vehicle of the respondent on 12 January 2012.







[24] On the issue of the
lack of supporting evidence, the evidence by Mr Kharigub that he had
recorded on the control document (exhibit 2) that the
fire-extinguisher belonged to Namdeb, was never disputed. Supporting
evidence, in my view, which was also not disputed was the fact that
the next day (ie on 11 January 2012) the respondent had purchased a
brand new fire-extinguisher. Surely this purchase must have been
necessitated by the fact that something was wrong with the
fire-extinguisher presented by the respondent the previous day.







[25] If
one has regard to the unchallenged incriminating evidence presented
on behalf of the appellant during the arbitration proceedings against
the respondent one would have expected of the respondent to testify
in his own defence.







[26] The
fact that the respondent did not testify during the arbitration
proceedings is significant in the sense that there was no evidence
presented during the arbitration proceedings gainsaying the evidence
of Mr Kharigub that the respondent presented a fire-extinguisher with
Namdeb marking on it on 10 January 2012 when he brought the motor
vehicle for a roadworthy test.







[27] The
fact that Mr Esterhuizen testified that he found no fire-extinguisher
with Namdeb markings on it when he inspected the vehicle of the
respondent two days later (on 12 January 2012) does in my view in no
way detract from the veracity of the undisputed evidence of Mr
Kharigub.







[28] The
arbitrator, in my view, erred in law in not accepting such evidence
despite the respondent not challenging such evidence, or put
differently, had the arbitrator taken this evidence into account she
would not have arrived at the conclusion that the respondent
(applicant in the arbitration proceedings) was ‘entitled to his
claims’.







[29] In
Namibia Power Corporation v Gerald Nantinda
an unreported judgment of the Labour Court in case no. LC 38/2008
dated 22 March 2012 at para [28] Smuts, J stated the following:







‘In
earlier written argument filed on behalf of the respondent (and not
raised before me), the question was raised as to whether the appeal
was one which relates to a question of law. In my view, it clearly
constitutes a question of law if an applicant can show that the
arbitrator’s conclusion could not reasonably have been reached.
In doing so I respectfully follow the approach of the full bench of
this court in Rumingo and Others v Van Wyk. The full bench in
that matter made it clear that a conclusion reached (by a lower
court) upon evidence which the court of appeal cannot agree with
would amount to a question of law. This approach is also consistent
with that of a subsequent full bench decision in Visagie v Namibia
Development Corporation
where the court, in my respectful view,
correctly adopted the approach of Scott JA in Betha and Others v
BTR Sarmcor
that a question in law would amount to one where a
finding of fact made by a lower court is one which no court could
reasonably have made. Scott JA referred to the rationale underpinning
this approach that the finding in question was so vitiated by lack of
reason as to be tantamount as be no founding at all. That in my view
aptly describes the finding of the arbitrator in this matter. As was
further stated by Scott JA, it would amount to a question of law
where there was no evidence which could reasonably support a finding
of fact or ‘where the evidence is such that a proper evaluation
of that evidence leads inexorably to the conclusion that no
reasonable court could have made that finding . . . . ’



(See
Rumingo & Others v Van Wyk
1997 NR 102 (HC) at 105D-E;
Visagie v Namibia
Development Corporation
1999 NR 219 (HC) at
224C-H;
Betha and Others v BTR Sarmcor
1998 (3) SA 349 (SCA).







[30] The
arbitrator in her analysis of the evidence stated that ‘the
witness’ (I presume the son of the respondent)
testified that he was sent back on more than one occasion and once he
had fixed the defects as pointed out by Mr Kharigub another fault was
found and then he was sent back again. This evidence the arbitrator
remarked was never challenged. The fact that this evidence was not
challenged is also of no consequence. What it pointed to, is that
there were numerous defects on the motor vehicle. What the arbitrator
did not refer to in her analysis in this regard was that on 28
December 2012 some of the defaults on the motor vehicle of the
respondent (as testified by his son) were the defective brakes and
that the fire-extinguisher was too small and was not mounted inside
the vehicle.







[31] When
the respondent arrived with the motor vehicle on 10 January 2012 the
brakes were still defective and a bigger (1,5 kilogram)
fire-extinguisher was presented (the Namdeb fire-extinguisher) and
this fire-extinguisher had still not been mounted inside the motor
vehicle. The conclusion from this evidence (which was not challenged)
was that the defects on the motor vehicle were not properly attended
to and that this was the cause why the vehicle failed the roadworthy
tests on more than one occasion.







[32] The
respondent was dismissed during the disciplinary hearing
inter
alia
because he was convicted of the
unauthorised use of company property. During the arbitration
proceedings the evidence by Mr Kharigub was that a fire-extinguisher
with Namdeb markings was presented during the roadworthy test. This
evidence was never challenged during cross-examination. Mr Kharigub
also testified that he had informed the respondent that he would not
accept the fire-extinguisher so presented because it belonged to a
company (Namdeb). This evidence was also not challenged during
cross-examination.







[33] Instead
the arbitrator allowed herself to be distracted by irrelevant
evidence and failed to make specific finding in respect of one the
major disputes between the parties, namely whether or not the
evidence presented, established the unauthorised use of property
belonging to the applicant.







[34] The
second issue for determination by the arbitrator was whether, in
terms of the provisions of section 33 of the Labour Act 11 of 2007,
it was fair to have dismissed the respondent.







[35] In
the matter of
Foodcon (Pty) Ltd v Swarts
NNLP 2000 (2) 181 NLC Mr Justice Silungwe stated the
following regarding the employer – employee relationship:







‘Trust
is the core of the employment relationship. Dishonest conduct is a
breach of the trust. Accordingly dismissal is the appropriate action.
The maintenance of confidence in an employer/employee relationship is
so vital that it must enjoy abiding nurturing. A violation of such
relationship will normally be visited with dismissal.’







See
also
Model Pick ‘n Pay Family
Supermarket v Mwaala
2003 NR 175 (LC) at
181 – 182.







[36] One
is required to infer that the evidence did
not
establish the respondent had used the fire-extinguisher in an
unauthorised way, by the finding of the arbitrator that the
respondent was dismissed without a valid and fair reason.







[37] The
question whether or not the respondent was fairly dismissed by the
appellant lies in the nature of the employer – employee
relationship as I have indicated (supra).







[38] Gibson,
J in
Oa-Eib v Swakopmund Hotel and
Entertainment Centre
1999 NR 137 at 141
referred with approval to the case of
Central
News Agency (Pty) Ltd v Commercial Catering & Allied Workers
Union of SA and Another
(1991) 12 ILJ 340 at
344F where the court observed the following:







‘This
trust which the employer places on the employee is basic to and forms
the substratum of the relationship between them. A breach of this
duty goes to the root of the contract of employment and of the
relationship between employer and employee . . . . An employer
unquestionably is entitled to expect from his employees that they
would not steal from him and if an employee does steal from the
employer that is a breach of the relationship and of the contract
between them and such a gross deviation of duty that dismissal
undoubtedly would be justified and fair.’







[39] The
unauthorised use of property of another person contains an element of
dishonesty and should in my view be visited with the same sanctions
as that applicable in respect of a conviction for theft.







[40] I
am satisfied that the appellant has established the facts during the
arbitration proceedings on a preponderance of probability on which
the dismissal of the respondent was founded and that the appeal
should succeed.







[41] In
the result the following orders are made:







  1. The
    finding by the arbitrator that the appellant did not prove on a
    preponderance of probability that the respondent was guilty of the
    unauthorised use of the said fire-extinguisher is set aside.








  1. The
    finding by the arbitrator that the respondent was dismissed without
    a valid and fair reason is set aside.









  1. The
    order by the arbitrator reinstating the respondent ‘with all
    his benefits before his dismissal’ is set aside.









  1. The
    award granted in favour of the respondent in respect of losses in
    the amount of N$143 184 is set aside.
























----------------------------------



E P B HOFF



Judge







APPEARANCES







APPELLANT :
G Dicks



Instructed by GF
Köpplinger Legal Practitioners, Windhoek











RESPONDENT: E
E Coetzee



Of Tjitemisa &
Associates, Windhoek