Num obo Mokoena v Mogale Gold, A Division of Mintails (SA) (Pty) Ltd (JA11/2014) [2015] ZALAC 32; [2015] 10 BLLR 1016; (2015) 36 ILJ 2815 (LAC) (22 July 2015) per Landman JA [Tlaletsi DJP and Sutherland JA concurring]

Result:  The Labour Appeal Court allowed the appeal, set aside Chenia AJ’s review judgment in the Labour Court and upheld the arbitral award of retrospective reinstatement with effect from 24 April 2009.

LAC summary: Review of arbitration award – employee dismissed based on inference drawn from circumstantial facts – employee dismissed for collusion of theft of gold –gold and refinery equipment found at other dismissed employees’ homes – employer relying on unqualified lifestyle audit of employee and suspicious behaviour caught on video – Labour Court setting aside arbitration award. Appeal – Labour Court relying on circumstantial evidence – facts from which inferences are to be drawn must be true and proven – primary facts from which inference of collusion drawn not proven – no material evidence linking employee to the theft – video footage depicting no incriminating action – Labour .Court erring in reviewing arbitration award – appeal upheld.

Extracts:

[23] At the time that the dismissal was considered by the arbitrator, the issue had been narrowed to collusion although the arbitrator considered all the charges. There is no direct evidence of collusion. The respondent presented circumstantial evidence to the arbitrator. The arbitrator appreciated that this was the case. The approach to be adopted when an inference is sought to be drawn from other facts was summarised in Cooper and Another NNO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) Zulman JA observed that:

‘It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. In a criminal case, one of the ‘two cardinal rules of logic’ referred to by Watermeyer JA in R v Blom is that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct. This rule is not applicable in a civil case. If the facts permit of more than one inference, the Court must select the most ‘plausible’ or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.’ [at para7, 1027E-1028D]

. . . .

[25] The facts from which inferences are to be drawn must be true and proven. Although all the facts must be considered holistically, it is necessary to examine the facts to establish that they are true and proven. Secondly, as the inference of collusion also involves drawing an inference from other facts that are themselves inferences from the primary facts, these initial inferences must be interrogated. Only when the proper facts including the inferences made from those facts have been satisfactorily established, may the final inference of collusion be attempted.

[26] It may be accepted that certain rules were put in place by the respondent that applied to the workers in the smelt house. But, it seems that, regardless of the rules, there was a common practice in the smelt house to ignore some rules. The storeroom was not kept locked and the foreman would have observed it as the video shows. The foreman and the attendants ignored any rule regarding the use of cellphones and that no one should enter the storeroom unaccompanied. The security officer presumably did not react to the employees carrying cellphones into the smelt house. The fact that the second appellant and the other attendants broke the rules is therefore not particularly significant.

[27] In drawing an inference from the facts, it must be borne in mind that we do not know what duties, if any, the three attendants were obliged to be performing at the time reflected on the video. Objectively, it cannot be said that the second appellant and Masemola were keeping a lookout.