Court name
Supreme Court
Case number
SA 12 of 2004
Case name
Van Wyk v Commercial Bank of Namibia Limited
Media neutral citation
[2005] NASC 2











CASE NO.
SA.12/2004










IN
THE SUPREME COURT OF NAMIBIA











HENDRIK
JACOBUS VAN WYK APPELLANT


And


COMMERCIAL
BANK OF NAMIBIA LIMITED RESPONDENT





CORAM: TEEK,
JA., MARITZ, A.J.A. et CHOMBA, A.J.A.





HEARD
ON : 26/10/2004



DELIVERED
ON: 22/04/2005






APPEAL JUDGMENT





Chomba,
A.J.A.:
The Appellant (to whom I shall hereinafter refer by his
name of Van Wyk) was employed by the Commercial Bank of Namibia
Limited (to which I shall in this judgment refer as “the Bank”)
until 30th June, 2000 when his employment was terminated.
The circumstances which led to termination and the events which have
intervened since then are the ones which have occasioned this
appeal. As a starting point, therefore, I shall summarise those
circumstances and events before focusing attention on ways and means
of resolving the appeal.





Circumstances leading to
termination


Van
Wyk was employed at the Central Cash Vault of the Bank at its Bulow
Street Branch and worked with two colleagues, Pieter Links (Links)
and Petrus Matheus Swarts (Swarts). The last named was his
immediate supervisor. Part of Van Wyk’s responsibility was to
pack bank notes into vaults of the Bank. On three occasions in
February 2000 a total of N$4,000 belonging to the Bank went missing
allegedly in the course of Van Wyk’s work. On 25 of February
2000 Van Wyk sought and was granted permission by Swarts to leave his
point of work and pay a short visit to his sister-in-law who worked
at a nearby Pep Store. In seeking the permission he told Swarts
that he wanted to fetch from the sister-in-law N$100 which he had
earlier loaned her. During his absence an occasion arose for some
money to be removed from the vault but this could not be done because
Van Wyk had one of the keys to the vault. Links and Swats went out
to look for him at Pep Store but he was not found there. On their
way from Pep Store to the Bank the two checked for Van Wyk at a
nearby gambling shop. He was found there gambling at the gambling
machine. In the result Van Wyk was charged with four disciplinary
offences including one of dishonesty and 26th June 2000
was fixed as the date of hearing of the disciplinary cases. Owing to
transportation difficulties Van Wyk was unable to travel from
Rehoboth where he lived to Windhoek to attend the hearing. He phoned
an officer of the Bank and explained his difficulty to him, but that
notwithstanding he was subsequently additionally charged with
insubordination for failing to attend the disciplinary hearing.





The
outcome of the disciplinary cases was that Van Wyk was found guilty
on all five charges. On the first two charges the penalty meted out
was a final warning while on the other three, including the charge of
dishonesty, dismissal was imposed. Consequently Van Wyk’s
employment was terminated.





In due course he filed a complaint in the District
Labour Court in Windhoek. The cause of action specified in the
complaint was simply stated as “unfair Labour Practice” while the
relief claimed was “reinstatement of the job with full benefits and
any increase and payment for any inconvenience”. The upshot of
the proceedings in the District Labour Court was that the Bank was
held to have committed an unfair practice by dismissing Van Wyk on
the basis of the charges laid against him. The District Labour Court
then directed the Bank to reinstate Van Wyk and also, pursuant to
section 46(1)(a)(i) and ((ii)(sic) of the Labour Act, No. 6 of 1992
“…….to pay (Van Wyk) an amount equal to any loss suffered by
the complainant in consequence of such dismissal or an amount which
could have been paid to him had he not been dismissed.” Aggrieved
by that outcome the Bank noted an appeal to the Labour Court (court
a quo
), which subsequently endorsed the District Labour Court’s
verdict on the first count of misappropriation of the Bank’s
funds, but made no specific determinations on the remaining counts
with one exception.





On
the charge of dishonesty the learned judge of the court a quo
reversed the verdict of the District Labour Court as appears from the
following extract of the judgment.






The
Respondent (i.e. Van Wyk) was employed by the Appellant (i.e. the
Bank) at Central Cash in its Bulow Street Branch in Windhoek. On
the 25th February 2000 he requested and was granted
permission to visit his sister-in-law who worked at a nearby Pep
Retail Shop for the purpose of borrowing N$100 (sic). But before he
returned to his station there was an urgent request for cash for
which a set of keys in his possession was needed to access the cash.
The Respondent’s supervisor, Mr. Petrus Matheus Swarts,
accompanied by a colleague, Mr. Pieter Links went to the Pep Store
to look for him but he was not there. They continued the search and
located him inside the gambling shop where he was engaged in the
activity of gambling. It was for this reason that the Appellant
dismissed the Respondent for dishonesty.






The general
principle governing this issue has been enunciated as follows :







It is for the
employer to determine the standards of conduct required of its
employees and the courts should only intervene when any sanction
imposed for breach of these standards if it results in any
unfairness: Maphetane v Shoprite Checkers (PTY 1996) 17 ILJ 964
(IC)’.


It is self evident that by virtue of
the nature of work performed by bank employees, their employers are
entitled to expect absolute integrity and absolute honesty at all
times i.e. in and out of work places.






In casu
the Respondent obtained the employer’s permission for a brief
absence from work for the purpose of visiting his sister-in-law to
borrow N$100 from her. He indicated in his evidence that he would be
calling her to testify but failed to do so or to give an explanation
for his failure. His testimony shifted the evidential burden to
him and the only reasonable inference to be drawn from the failure to
call his sister-in-law is that he never visited her but deceived his
employer and lied about his whereabouts with knowledge that his
employer would not have given him permission to go gambling during
office hours………”
( emphasis supplied).




Van
Wyk was aggrieved by the reversal of the verdict of the District
Labour Court hence his present appeal. In expressing his unhappiness
in this regard he filed the following grounds of appeal.





Grounds of Appeal


These
were :






  1. The
    court a quo erred in finding that the failure by the
    Appellant to call his sister-in-law to testify or give an
    explanation for such failure shifted the evidential burden to the
    Appellant.








  1. The
    burden of proving dishonesty remained on the Respondent throughout
    and in the absence of evidence contradicting the Appellant’s
    evidence that he went to see his sister-in-law the Appellant did not
    in law attract an evidential burden.


  2. Whether
    or not there is evidence on record from which the court a quo
    could reasonably have concluded that :



    1. Appellant
      did not visit his sister-in-law;


    2. The
      Appellant deceived his employer and lied about his whereabouts and
      thus was guilty of dishonesty;



  3. Whether
    the court a quo could reasonably have concluded, based on the
    evidence on the record, that the Appellant was correctly dismissed
    for a fair and valid reason;


  4. Whether
    the court a quo could reasonably have concluded that the
    dismissal of the Appellant was a fair and appropriate sanction and
    therefore a far dismissal; and


  5. Whether
    or not based on the evidence, the court a quo should
    reasonably have found that, the Appellant having been convicted of
    gambling during office hours as the main charge (the alternative of
    which was absence from work without leave), that the further charge
    of dishonesty amounted to an inadmissible duplication of charges
    against the Appellant, based on the same facts as that of
    alternative charge to the gambling charge.




The foregoing
grounds of appeal raise the following legal issues, viz:


(i) Whether or
not Van Wyk was guilty of dishonesty – this issue is covered by
grounds 1 – 3;



  1. Whether
    or not having regard to the evidence on record, the dismissal of Van
    Wyk was reasonable and fair. Grounds 4 and 5 are pertinent to this
    issue;


  2. Whether
    or not the charge of dishonesty was an admissible splitting of
    charges, regard being had to the fact that Van Wyk had also been
    charged with gambling during office hours, with the charge of being
    absent from work without leave as an alternative. This issue is
    covered by ground 6.






I
shall now evaluate the three issues set out hereinbefore within the
context of the facts already recapitulated.




Issue
1: Whether or not Van Wyk was guilty of dishonesty


As
I have already noted the judge of the court a quo held that
Van Wyk failed to discharge the evidential burden which shifted to
him when earlier in his evidence he told the court that he would call
his sister-in-law as a witness but did not do so in fact. He gave no
plausible reason for failing to do so. Arising from that failure the
judge concluded –





“……the only reasonable inference
to be drawn from the failure to call his sister-in-law is that he
never visited her but deceived his employer and lied about his
whereabouts with knowledge that his employer would not have given him
permission to go gambling during office ours.”






The
learned judge in the court a quo having determined that the
evidential burden had shifted to Van Wyk, it was unnecessary for him
to draw the conclusion that the only inference remaining to be drawn
was that Van Wyk never visited his sister-in-law and had thereby
deceived his employers. In so doing the judge, in my view, applied
to a civil case, which the present was, the higher burden of proof,
namely proof beyond reasonable doubt which is applicable to criminal
cases.






The
following passage occurs at page 113 of the 7th edition of
Cross on Evidence under the rubric “evidential burden”:







The
evidential burden is the obligation to show, if called upon to do
so, that there is sufficient evidence to raise an issue as to the
existence or nonexistence of a fact in issue, due regard being had to
the standard of proof demanded of the party under such obligation.
The concluding clause is designed to meet the point that the amount
of evidence required to induce a judge to leave an issue to the jury
varies according to whether the case is civil or criminal and whether
the party bearing the burden is plaintiff, prosecutor, defendant or
accused.”






It
is settled law that when a party to an action adduces evidence and
thereby establishes a prima facie case of the existence of a fact in
issue, that party is likely to win on the issue to which the presumed
fact relates in the absence of evidence to the contrary adduced by
the other party: ibid at page 118. In casu the fact
in issue which the Bank had to establish as a basic fact was that
Van Wyk sought leave to visit his sister-in-law at Pep Store but
that he did not do so. On his own evidence, Van Wyk was out from
his place of work from 15.15 hours and returned to the Vaults, his
working place at 15.45 or 15.50 hours (see at page 593 of the record
of appeal). Therefore he was out for about 30 or 35 minutes.
Within that period of time he, Van Wyk was sought at Pep Store by
Swarts and Links but he was not found. Instead he was found gambling
at the gambling house. That evidence having been adduced, a
rebuttable presumption of fact was, in my view, raised that Van Wyk
never visited his sister-in-law. There was therefore a duty on Van
Wyk to rebut that presumption. It is granted that Van Wyk did
testify that he did actually visit his sister-in-law. However when a
person says that he is going to point A (in this case Pep Store),
but he is instead, within a brief space of time (30 or 35 minutes)
found at point B (in this case the gambling house) his assertion
simpliciter that he did in fact visit point A does not intrinsically
carry a ring of truth. In such a case if other evidence is adduced
extrinsically which affirms the visit, credibility would be added
to the assertion. Such evidence would be more weighty as a rebuttal
or as a discharge of an evidential burden which had shifted to the
party making the assertion in answer to the prima facie case earlier
raised by the other party. That is what made the need for the
sister-in-law’s evidence critical as rebutting evidence. However
Van Wyk withheld it by not calling her.






Arising
from the foregoing, I am of the considered opinion that the
employer, the Bank, was justified to presume that Van Wyk had lied
when he sought permission on the strength of the excuse that he
wanted to visit his sister-in-law. To that extent I come to the same
conclusion as the learned judge of the court a quo, although through
a different route. I come to the same conclusion not because the
only inference to be drawn was that Van Wyk lied to his employer,
but because the evidence adduced on behalf of the Bank established a
prima facie case or a rebuttable presumption that Van Wyk lied in
seeking leave of absence from work, and in failing to call his
sister-in-law as a witness he failed to adduce enough evidence to
rebut the presumption. That was the same as failing to discharge the
evidential burden which had shifted to him.





Issue
2: Whether or not having regard to the evidence on record the
dismissal was
reasonable and fair






In
considering this issue it is necessary to revert to the passage
already reproduced from the judgment of the court a quo. The tail
end of that passage reads :






Indeed the
personnel manual applicable to him (i.e. Van Wyk) specifically
provided for dismissal for the first conviction of dishonesty and the
Respondent (that is Van Wyk) did not suggest that he was unaware of
the provision.”






As
the learned judge observed, Van Wyk did implicitly concede to the
existence of the personnel manual. That manual prescribed dismissal
as the applicable sanction on “conviction” for dishonesty. The
use of the term “conviction” is prone to raise concern as to
whether a criminal conviction was envisaged by the framer of the
personnel manual. Since Van Wyk was not indicted for a criminal case
it could be said that the term was inapplicable to him. However
perusal of the record of appeal assuages any such concern.
Testifying for the Bank in the District Labour Court, Ms. Rapsch, the
officer in charge of Organization Internal Services in the Bank,
testified that the rating of dishonesty as disciplinary offence was
that it was a major offence (see at page 254 lines 10 to 11). Then
page 283 shows that she was asked the question -






He alleges
that dismissal on a charge of dishonesty was too severe, what are
your comments?”


She
queried, “dishonesty?” The prosecutor, Mr. Obbes answered “Yes”
whereupon Ms. Rapsch stated –






“……….Well
we are working with money and unless we have got honest employees we
can sooner or later close down. So dishonesty in the Bank is a very
serious offence.”





Therefore
since the Bank’s rating of the offence of dishonesty was that it
was a major or very serious offence, it is no surprise that the Bank
applied to it what was considered to be a commensurate punishment for
it, namely dismissal. It is in that sense that the word conviction
was used in the context of disciplinary proceedings.





The
subjective opinion of the Bank officials as to the seriousness of the
offence of dishonesty may not suffice as a yardstick which should
bind the judiciary. However the learned judge in the court a quo
applied an objective test and still came to the conclusion that the
aberrant conduct of Van Wyk on the material date was enough to be
visited by the sanction of dismissal and especially because that
sanction was the one prescribed in the personnel manual applicable to
the Bank employees. In doing so the judge relied, inter alia, on the
dictum abstracted from the case of Mahlangu v CIM Detlak, Gallant
v CIM Detlak (1986) 7ILJ 346, to wit –







It is
expected that any act on the part of any employee in the performance
of his employment activities, and of which dishonesty is a
component, entitles the employer to dismiss the employee summarily.
However, dishonesty must not be merely suspected, it must be proved,
although this proof may be based on a balance of probabilities.”





I
am in full agreement with the view taken by both the Bank and the
learned judge of the court a quo. My answer therefore to issue 2 is
that that the dismissal was reasonable and fair.





Issue 3: Whether or not the
charge of dishonesty was a splitting of charges regard being had to
the fact that Van Wyk had also been charged with gambling within
office hours in addition to absence from work without leave as an
alternative.






On
this issue the effective argument of Advocate Corbett, who
represented Van Wyk in this appeal, was the following: When it is
considered that his client had been charged with gambling during
office hours and being absent from work without leave as an
alternative, to have charged him additionally with dishonesty
amounted to inadmissible splitting of charges. The premise for this
argument was that all the offences occurred contemporaneously and
formed a series of one transaction. One of the cases Mr. Corbett
cited in support of his contention was S v Ntswakele 1982(1) SA
325 (TPD). Ntswakele was a case in which the accused was charged
before a magistrate on 8 counts of theft. He was convicted on only 3
of them. The evidence in support of the charges showed that all the
victims in the 3 counts lived in one room and that the articles
stolen were found missing on the same day, that is 28th of
October 1980. On review of the case by a full bench of the High
Court, Margo, J, who delivered the judgment of the court, held that
there had been an inadmissible splitting of charges. The court’s
view was that the accused should have been charged on only one
composite theft charge. In the course of his judgment Margo cited a
number of cases, including R v Koekemoer 1956 (2) SA 140 (E), R v
Rankolane 1931 EDL 159 and R v Pieterse 1916 CPD 262. In each of
these cases the accused stood charged with several counts of theft
arising from facts which occurred, as in Ntswakele, contemporaneously
and in one place. The view that there had been undue splitting of
charges was held in all those cases. The dictum of Gardiner, J.P.,
in Pieterse, supra, is however instructive. He said :







It is far
easier to criticize any rules suggested than to lay down a principle
which will govern all cases, and I do not pretend to be able to
frame a rule which will prove infallible. The test however which I
would venture to put forward for cases of theft is that where at the
same place two acts of theft are committed, and between the
commission of the two acts there is no substantial interval of time
passed by the accused in some occupation other than the commission of
the same acts, one offence only is committed.”





In
that dictum it is noteworthy that the judge was careful in his
choice of words when he said “the test I would venture to put
forward for cases of theft…..” The clear implication is that the
test he ventured to put forward was not of universal application to
all manner of offences, but only applied to offences of theft. That
that test is not applicable in cases other than those of theft is
demonstrated by the case of R v Mansfield (1977) 1WLR 1102, an
English case. In that case the accused had set fire to a hotel in
which there were several persons seven of whom perished in the fire.
He was charged with arson and seven counts of murder, all arising
from the same incident. The joinder in that case was not challenged.






It
is a settled principle of law that a number of offences may be joined
in the same indictment if those offences are founded on the same
facts or form or are a part of a series of offences of similar
character. It was upon that principle that the charges in Mansfield,
supra, were justified. What is forbidden in law in the framing of
charges is the inclusion of more than one distinct offence in one
count. That is called duplicity and a charge is said to be bad if
it is duplicitous: see Blackstone’s Criminal Practice 2003 under
the rubics – “ Rule against duplicity” on page 1270 and
“Joinder of counts in indictment” at page 1278.






In
the present case the submission was that there had been a splitting
of charges. However on the authority of Mansfield that submission
does not hold water in all cases. Moreover it is not unusual that
one course of conduct can engender a multiple of offences which do
not belong to the same genus. In such a situation it is not
practicable to prefer only one charge. In the Mansfield case, for
example, how could arson and murder be charged in one count? It is
the negative answer to that rhetorical question which justifies
splitting in many instances.






In
the recent case of Tjivela v The State, Appeal Case Number SA
14/2003, for instance the Appellant was charged on three counts,
namely unlawfully and intentionally breaking and entering into the
house of Hansina Guim on the second count, unlawfully and
intentionally and under cover of coercive circumstances committing a
sexual act with the complainant Riana Guim on count three, and on the
4th count with unlawfully and intentionally killing Riana
Guim. All these offences were alleged to have been committed on the
6th of February 2001 and in the same house. Granted that
no issue of splitting charges was raised in that case, there is no
doubt that if it was raised it would have been shot down. This is
because it would have been legally impermissible to compound all the
aforementioned offences into one count. Doing so would have made the
composite count bad for duplicity.






Yet
another reason why I feel that the argument of splitting charges
cannot succeed in this case is that splitting charges should be
frowned upon, quite apart from the reason alluded to in the cases
earlier cited in this judgment, if by reason of splitting charges the
accused was embarrassed and prejudiced in conducting his defence. In
other words splitting leading to a miscarriage of justice is not
permitted. In the present case no argument has been put forward that
Van Wyk was embarrassed and/or prejudiced in presenting his case or
that a miscarriage of justice was occasioned.






In the final analysis I hold the opinion that none of the grounds
of appeal is sustainable. I find no merit in the appeal. It is
hereby dismissed. I would however uphold the submission of Mr.
Cohrssen, advocate for the Bank, that the order in this case should
not be that of absolution from the instance. It is instead hereby
ordered that the allegation that the Bank is guilty of unfair
practice by dismissing Van Wyk was unsubstantiated because in my view
and for the reasons contained in this judgment, the dismissal was
fair and reasonable.











……………………………



CHOMBA, A.J.A.






I
agree






...........................................


TEEK,
J.A.






I
agree






………………………………..


MARITZ,
A.J.A.








COUNSEL
FOR THE APPELLANT: MR. A.W. CORBETT



INSTRUCTED
BY (KAUTA, BASSON AND


KAMUHANGA
INC.)





COUNSEL
FOR RESPONDENT : MR. R.A. COHRSSEN



INSTRUCTED BY (LORENZ AND BONE)