Commissioner: Gaan uself getuig, of sluit u u saak?
Applicant: Ek sluit my saak.
Commissioner: U gaan nie self getuig nie.
Baie dankie, die applikant het sy saak gesluit.
With that the commissioner adjourned the proceedings after the parties agreed to file written argument.
On 24 March 2003 the applicant addressed 16 pages of written argument to the commissioner. It is evident from this document that the applicant relied on evidence falling directly within his personal knowledge, which had not been adduced at the arbitration hearing. The factual submissions thus made addressed not only the events of 11 September 2002, but also his substantive justification and denials in respect of the charge of insubordination.
As mentioned earlier, the commissioner found that the applicant had been fairly dismissed on 26 September 2002. From his award it is obvious that the commissioner felt constrained not to give any weight to the applicant’s version, which had not been given under oath. He also felt, correctly I might add, that the applicant’s witnesses shed little light on the critical issues in dispute.
After his summation of the evidence, the commissioner recorded that the applicant had indicated that he did not wish to testify under oath. And then, in his analysis of the evidence, dealing with the critical issue of what transpired in the CEO’s office he observed:
The practical effect of the applicant not testifying is that the respondent led the evidence of 5 witnesses whom I’ve already indicated made a good impression, testifying about what was said and what happened concerning the incidents in dispute, while on the other hand although the applicant led the evidence of 8 witnesses I have no evidence from the applicant under oath contradicting what the respondent’s witnesses testified to. What was put to the respondent’s witnesses by the applicant during cross-examination is not evidence that I can take into account in his favour.
More specifically in relation to the disputed date of dismissal, he said:
On the other hand the applicant presented no evidence under oath concerning the incident in Mr. Zihlangu’s office on 11 September 2002. Not one of his witnesses was present at that stage and I therefore have the situation that the only evidence under oath concerning whether the applicant was dismissed on 11 September 2002 or not, comes from the respondent.
Later in the award, when dealing explicitly with the question of substantive fairness and the question of whether the applicant had indeed disobeyed a lawful instruction, the commissioner accepted Alexkor’s version, more or less on the basis that it was the only sworn version before him. Hence, he concluded:
As already indicated, despite this evidence by the respondent, the applicant did not testify under oath and I therefore as far as the critical issues in dispute are concerned, just have the evidence of the respondent before me.
It is clear, therefore, that the applicant’s failure to testify under oath played a significant role in the commissioner reaching the conclusion he did.
The applicant essentially submits that the failure of the commissioner to alert him to the consequences of failing to testify under oath has had the effect of denying him a fair trial of the issues and that such amounted to misconduct in relation to his duties as an arbitrator or a gross irregularity in the conduct of the arbitration proceedings, making the award reviewable under section 145(1) read with section 145(2)(a)(i) and (ii) of the LRA.
The applicant first raised this ground of review after receiving the transcribed record of the arbitration proceedings in his supplementary affidavit filed in terms of rule 7A(8)(a). In it he points out that he has never had any legal training and that such was obvious to the commissioner. He complains that the commissioner failed to warn him that his failure to testify on crucial events would be held against him and that the commissioner should have realized that he was ignorant of the rules of evidence and warned him accordingly. As a lay person, he claims to have been under the impression that he did not need to present evidence because he had placed his version before the commissioner in his opening statement and during cross-examination of the respondent’s witnesses. He avers that he would have testified under oath had he known that his presentation of his version was insufficient. That he believed his version was before the commissioner is to a degree borne out by the manner in which he dealt with it in his written closing argument.
The respondent, Alexkor, contends that the material facts relating to the charges brought against the applicant and the events that led to charges being brought against the applicant were not placed in dispute during the arbitration either in the version of the applicant put to the witnesses or by the applicant’s submissions. Moreover, it submits, the version contained in the closing argument was not properly before the commissioner. It maintains the commissioner gave the applicant a fair opportunity to give evidence himself and despite those opportunities, the applicant declined to give evidence. It also argued that the applicant suffered no prejudice as a result of the commissioner not giving the applicant an explicit warning because the version so put would not, had it been admitted, have led to a different result. Finally, it is suggested, had the commissioner instructed the applicant as proposed, he may have opened himself to the charge of descending into arena and thereby compromised his impartiality.
Before considering the arguments, it must be said that the task of investigative arbitration bestowed on CCMA commissioners by the LRA is an unenviable one. This court has understanding for how difficult it must at times be to play the dual role of umpire and counsel to unrepresented parties in an arbitration involving 13 witnesses enduring over a period of a number of days. In this case, the commissioner approached the task considerately with conscientious regard for the rights of both parties. His explication of the requirements of cross-examination was clear, to the point and no doubt helpful. Unfortunately, perhaps by then slightly more fatigued, he appears not to have followed through when required to instruct the applicant on giving testimony.
In the employment law context, where there is evidence directly implicating an employee in misconduct, or which is adverse to his or her version, such employee cannot afford to leave that evidence unanswered. Although the commissioner would not be obliged to accept that evidence solely on the ground that it is uncontradicted, provided it is credible, it is unlikely to be rejected if the employee has chosen not to deny or contradict it. An employee’s failure to testify will always strengthen the case for the employer - see Hoffmann and Zeffertt: The South African Law of Evidence @ 598-599. Nevertheless, it is clearly not an invariable rule that an adverse inference be drawn or that the uncontradicted version should stand. In the final analysis the decision must depend upon the circumstances of the litigation. And, accordingly, in instances such as the present, a commissioner would be justified in drawing an adverse inference or accepting an uncontradicted version only if he has cautioned the unrepresented litigant that his failure to testify might lead to that result.
Commissioners acting under the auspices of the CCMA in terms of the LRA are expected to act inquisitorially or investigatively. Section 138(1) of the LRA provides that a commissioner may conduct the arbitration in a manner that he or she considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with a minimum of legal formalities. This includes stepping momentarily and cautiously into the arena to direct the proceedings in the interests of justice. In Consolidated Wire Industries (Pty) Ltd v CCMA  10 BLLR 1025 (LC) the Labour Court stated:
The parties were laymen unrepresented by legal practitioners and without the benefit of pleadings to tie the parties to a version. When a version is charged or a new version is suddenly presented the arbitrator must take charge of proceedings. He cannot rely on the parties to realize what it expected of them unaided.
By the same token, and perhaps even more so, one might expect the commissioner to take charge by instructing a party to put a version (of which he is aware) under oath or risk the consequence of an adverse inference or his acceptance of the uncontradicted testimony. The failure to give that warning, in the light of a commissioner’s inquisitorial function and duties, in my assessment, constitutes a reviewable irregularity.
I find support for this proposition in the judgment of Gamble AJ in Scholtz v Maseko NO and Others  9 BLLR 1111(LC) @ 1119-1120 where in relation to similar but not identical facts he held:
It seems to me more probable that the applicant did not give viva voce evidence before the first respondent because she did not comprehend that she was obliged to do so. Certainly, the first respondent took no steps to inform the applicant that the only way in which she could place her evidence before him was by giving viva voce evidence. Nor did the first respondent warn the applicant of the possible consequences of her failure to testify.
As pointed out above, the first respondent has in fact drawn an adverse inference from the applicant’s failure to testify. In my opinion the applicant was prejudiced by the first respondent’s failure to inform her of the rules of evidence and his intention to rely thereon, to the extent that she failed to present a proper case at the arbitration. The applicant has not had the benefit of the “fair play” approach in CCMA proceedings and the first respondent’s admitted assessment of the evidence before him and his failure to properly advise the applicant constitutes a further irregularity in the proceedings.
On a similar line of reasoning I am persuaded by Mr. Whyte, who appeared on behalf of the applicant, that the commissioner misconducted himself by neglecting to inform the applicant that the only way in which he could place evidence before him was by giving viva voce evidence under oath and by not warning him of the possible consequences of his failure to testify. The laissez faire approach adopted by the commissioner was inappropriate in the circumstances. He was under a duty to inform the applicant of the rules of evidence and his intention to rely upon them to accept an uncontradicted version or to draw an adverse inference.
Mr. Sibeko, who appeared for Alexkor, prevailed upon me to ponder the dangers of allowing commissioners to become overly involved in directing arbitration proceedings. Commissioners are required to be independent and must conduct themselves in such a way that any inference of bias is avoided. To this end, he submitted, commissioners should avoid being perceived as entering the arena or as lending assistance to the one party in proving its case. A commissioner’s duty should be restricted to outlining the format of proceedings and the procedural rights of the respective parties.
Mr. Sibeko’s admonition is a salutory one, worthy of being kept in mind as a point of departure. But to my mind the point suffers from overstatement. A requirement that commissioners inform parties of the rules of evidence and the potential consequences of not abiding them will not occasion illegitimate forays into the arena. It is well within the ambit of fair umpiring to spell out the rules and the consequences of falling foul of them. Such an intervention would normally not involve the forming of a fixed view on the cogency of the existing evidence. It consists merely of an elucidation of the principle that unchallenged evidence has contingent results. There is no duty on the commissioner to insist upon the applicant testifying, nor may he compel such testimony - and to that extent the commissioner in this case stated the principle accurately. Where he failed was in not issuing the caution.
Finally, I also agree with Mr. Whyte that at the very least the commissioner ought to have re-opened the arbitration proceedings when alerted by the written argument that the applicant was clearly of the view that his version had been properly put, when it in fact had not.
In the premises, I am persuaded that the applicant was denied a fair trail of the issues and the award falls to be set aside on this ground alone.
This brings me to the question of relief. For evident reasons, I am in no position to determine whether the dismissal of the applicant was fair, and hence am unable to substitute my decision for that of the commissioner. The matter should therefore be remitted back to the first respondent, the CCMA. During argument I expressed my unease about the expense and delays of fresh arbitration proceedings involving 14 witnesses. I put it to counsel that there may be wisdom in referring the matter back to the same commissioner for the limited purpose of taking the evidence of the applicant and the issuing of a second award. Both counsel raised no objection in principle. However, on reflection, I hesitate to make such an order. Although the commissioner has demonstrated himself to be conscientious and an insightful professional without any particular bias, it would be unfair to the applicant to expect him to proceed before a commissioner who has already made an adverse award against him. Besides, it strikes me that much of the evidence adduced in the arbitration was strictly speaking not relevant or necessary. Now that able counsel represent both parties it may be possible to narrow the issues somewhat and to mould the evidence accordingly. Regrettable as it may be, the dispute must be determined afresh.
The applicant has asked for an order of costs. I am disinclined to make one. Firstly, the respondent, Alexkor, has not conducted itself unreasonably, vexatiously or frivolously. The award is reviewable because the commissioner erred in his duties towards the applicant in the conduct of a fair process. I am also mindful that the applicant was given an opportunity at both the disciplinary hearing and the arbitration to account for his conduct and refused on debatable grounds to do so. Had he complied and testified as he should have, this application might have proved unnecessary. He has prevailed in the review on the narrowest of margins, namely because he was not properly apprised of the consequence of his failure to play open cards. In such circumstances fairness mandates that there should be no award of costs.
In the premises I make the following orders:
38.1 The award of the second respondent dated 08 April 2003 under CCMA case number NC 1229/02 is hereby reviewed and set aside.
38.2 The dispute between the parties is remitted to the first respondent, to be arbitrated de novo by a Senior Commissioner other than the second respondent within 4 weeks of this order or such other time period as the parties may agree.
38.3 There is no order as to costs.
Date of hearing: 17 June 2005.
Date of judgment: 27 June 2005
Applicants’ Representative: Mr. J. Whyte of Cheadle, Thompson and Haysom.
Respondents’ Representative: Mr. T. Sibeko instructed by Nalane Manaka Incorporated.