IN THE INDUSTRIAL COURT OF SWAZILAND
In the matter between:-
FRANCE VUSUMUZI DLAMINI Applicant
NAMPAK SWAZILAND Respondent
Neutral citation: France V. Dlamini vs Nampak Swaziland Ltd (446/2007)  SZIC 3 (2016)
Coram: D. MAZIBUKO
(Sitting with A. Nkambule & M.T.E. Mtetwa)
(Members of the Court)
Heard: 17th September 2015
Delivered: 28th January 2016
Summary: Labour Law: Applicant dismissed for misconduct. Employer fails to prove misconduct.
Held – Dismissal unjustified and unfair.
Hearsay evidence, witness relies on computer print-out which is tendered to prove the truth of its contents. Witness unable to verify the data that was fed into the computer which resulted in the print-out.
Held – Evidence is hearsay and inadmissible.
- The Respondent is Nampak Swaziland, a company operating as such in Swaziland.
- The Applicant is a former employee of the Respondent. The Applicant worked for the Respondent as a Salesman since 13th September 1999.
- In February 2005 the Applicant’s contract of employment was upgraded. The Applicant was empowered to purchase a motorvehicle for use in executing his duties as a Salesman. The Applicant was financed by Standard Bank Swaziland, in purchasing the said motorvehicle, namely; a Toyota Corolla (sedan) registered as SD 010 ON. The Respondent acted as guarantor for due payment of the loan. The agreement was that the Respondent was responsible for fueling and maintaining the motorvehicle. The Applicant was permitted to keep the motorvehicle after hours for personal use.
- The motorvehicle was delivered to the Applicant with a fuel card which the Respondent had obtained by contract with Nedbank Ltd in South Africa. The agreement was that the Applicant would use the fuel card to purchase fuel and other lubricants that were necessary to maintain the motorvehicle. The fuel card was acceptable in service stations both in the Republic of South Africa and the Kingdom of Swaziland. Nedbank Ltd issued the fuel card to the Respondent as its client. The Respondent delivered the card to the Applicant for use as its employee.
- The procedure was that the Applicant would purchase fuel and lubricants at a service station and then present the fuel card to the petrol attendant for payment. The petrol attendant would swipe the fuel card on a Point of Sale device and at the same time feed into the system relevant information which included, the quantity and amount of fuel and lubricants purchased, the date of the purchase and the odometer reading of the motorvehicle. According to the Respondent’s witness (Mrs Razell Esakowitz) it was the Applicant’s duty to give the petrol attendant the correct odometer reading. According to the Applicant he always gave the petrol-attendant the correct odometer reading when requested to read same, but on certain days the attendant took the reading himself. The Applicant added that occasionally he noticed that the odometer recording was inconsistent. In the Applicant’s words ‘the odometer reading appeared to be going back and forth’. The Respondent did not deny this evidence concerning the malfunction of the odometer in the said motorvehicle.
- The Applicant began using the motorvehicle and petrol card from 1st February 2005 to 13th February 2006. The Applicant was however on leave in December 2005 and did not use the motorvehicle or fuel card. A fellow employee named Mr Welcome Dludlu used the motorvehicle and fuel card during the Applicant’s absence.
- About March 2006 the Applicant was called to a disciplinary hearing where he faced two (2) disciplinary charges viz.
“1. Breach of employee’s duty of good faith to the company entrusted to you by allocation of company vehicle and utilization of credit card to cover legitimate and official vehicle running cost.
- Dishonesty during the course of employment.
In that it is alleged that on or during the period between April 2005 and February 2006 you over-fueled, overdrew and caused over utilization of fuel through your company vehicle SD 010 ON by at least 525 litres to about 700 litres. You caused usage of your official credit card on toll fees in the month of August 2005 in the absence of your official vehicle SD 010 ON”
The Applicant was found guilty of “having breached his duty of good faith by over fueling, overdrawing and over utilization of fuel.” The Applicant was dismissed.
- The Applicant has challenged the dismissal on the grounds that it was substantively unfair. In terms of Section 42(2) of the Employment Act No.5/1980 as amended, the onus is on the Respondent to prove that the dismissal of the Applicant was reasonable and based on fair reasons.
- The Respondent called Mrs Esakowitz as its 1st witness. She is employed by Nedbank Ltd, in South Africa as Business Manager in the unit known as Asset Based Finance. She did not supervise the actual day to day use of the fuel card. Her evidence is based entirely on her understanding and interpretation of the contents of the computer print-out that Nedbank Ltd issued monthly to the Respondent (as its client). The print-out was meant to be the record of transactions that were carried out by Applicant using the fuel card. The computer print-out is marked exhibit R1.
- Mrs Esakowitz testified that she had ascertained from a certain motorvehicle dealer that the tank capacity of the motorvehicle in question was sixty (60) litres. The tank capacity of the said motorvehicle was not challenged by the Applicant. She pointed out that there are entries in the print-out (exhibit R1) which showed that on certain instances the said motorvehicle received more than sixty (60) litres of fuel in one filling. She referred to various examples including the following:
10.1 On the 15th February 2006 the print-out showed that the motorvehicle received Two Hundred and Eighty Four (284) litres.
10.2 On the 12th August 2005 the motorvehicle allegedly received Three Hundred and One (301) litres.
10.3 On the 16th February 2005 the motorvehicle allegedly received Seventy Two (72) litres.
According to Mrs Esakowitz these entries indicated an abnormality in the use of the fuel card since it is impossible for a sixty (60) litre tank to receive more than sixty (60) litres of fuel.
- Mrs Esakowitz further testified that she had ascertained from a certain motorvehicle dealer that the average and acceptable rate of fuel consumption on the said motorvehicle is eight point nine (8.9) litres per kilometer. The Applicant did not challenge the Respondent’s alleged average rate of fuel consumption, but did challenge the conclusions drawn by Mrs Esakowitz as well as the data that her evidence was based on-viz exhibit R1.
- Mrs Esakowitz pointed out certain entries in exhibit R1 which recorded a fuel consumption rate in figures that are much higher than the aforesaid average rate. The following examples are among those that were referred to both in the examination in chief and in the cross examination of Mrs Esakowitz. The table below is an extract from exhibit R1. The headings are abbreviated from source and they should be read in the following order; date, odometer reading, distance travelled, litres consumed, fuel cost and litres per 100 kilometers.
“R1 page 25
Date Odo. Dist. Ltrs. F/cost Ltrs/100
1. 16.2.2005 160 812 72.3 371.65 8.9
2. 30.1.2005 160 48.6 192.00 8600.0
3. 1.2.2005 160 51.6 203.88 1600.0
R1 Page 24
- 17.02.2005 4003 336 55.7 220.02 16.6
- 19.2.2005 4294 291 50.8 200.54 17.5
- 22.2.2005 4584 290 51.5 203.50 17.8
- 25.2.2005 4584 47.5 187.78
- 02.03.2005 5361 52.5 207.42 6.8
- 09.03.2005 5417 833 51.0 214.01 18.1
9. 15.03.2005 9883 3383 48.8 205.11 1.4
R1 page 18
Date Odo Dist. Ltrs. F/cost Ltrs/100
- 17.8.2005 24387 391 55.3 276.42 14.1
- 20.8.2005 24870 483 57.9 289.55 12.0
- 25.08.2005 24895 25 53.4 267.10 213.6
- 27.08.2005 25306 411 49.0 245.00 11.9
- 31.08.2005 25497 191 54.5 272.55 28.5
- 07.09.2005 26258 53.0 264.90 7.0
- 10.09.2005 26682 1185 45.03 235.42 8.3
- 14.09.2005 27031 349 58.6 304.51 16.8
R1 Page 14
Date Odo Dist. Litres F/cost litres /100
1. 02.01.2006 39640 9/9 50.0 271.0 5.4”
- According to Mrs Esakowitz, exhibit R1 showed an abnormality in the consumption of fuel in that it exceeded the acceptable limits aforementioned. The Applicant as the driver of the motorvehicle had to explain the cause for the apparent excessive use of fuel. She stated that the procedure requires that each time the motorvehicle is being fuelled the petrol attendant had to punch information into a Point of Sale device. That device was linked to a computer that would transmit that information to a Nedbank computer system which enabled Mrs Esakowitz, as a Nedbank employee, to access the information. With the information that was fed into the Point of Sale device the Nedbank computer would do its own calculation and work out the distance travelled from the last fill as well as the amount of fuel consumed, and this latter item would be presented in the form of; litres per kilometer. When doing its calculation the Nedbank computer relied solely on the information that had been fed into the Point of Sale device by the petrol attendant at the time of purchase.
- Mrs Esakowitz added that, once the petrol attendant had entered the necessary details in the Point of Sale device, a slip would be printed which the motorvehicle driver would be requested to sign. The driver’s signature would be confirmation that the contents of the slip are correct. Mrs Esakowitz did not witness the signing of those slips and further did not have an opportunity to see any signed slip. She could not therefore confirm the contents of the said slips.
- The Applicant admitted that the entries in exhibit R1 were inconsistent or variable but denied any wrongdoing on his part. The Applicant denied that the information that appeared in exhibit R1 was supplied by him. He insisted on being shown the actual slips that had been signed by him and handed over to the petrol attendant. According to Mrs Esakowitz, Nedbank Ltd was not in possession of those slips and could not therefore produce them. The Respondent also failed to produce those slips. The question therefore remained unanswered as to whether the information that is on the computer print-out (exhibit R1) is the same as the contents of the slips which the Applicant had signed. The onus was on the Respondent to prove this allegation but it failed to discharge that onus.
AGGS W.H.: WHARTON’S LAW LEXICON 11th edition, 1911, Stevens and Sons, (no ISBN) at page 135.
- The Respondent called its second witness Mr Ralph Sydney Woodard. Mr Woodard is or was a Service Manager at Leites Toyota, a motorvehicle dealer that operates in Swaziland. Leites Toyota once received a complaint about fuel-consumption in the motorvehicle in question. Leites Toyota examined the motorvehicle on two (2) instances and a report was issued after each examination.
16.1 The first report is marked exhibit A1 and reads thus:
“ TO WHOM IT MAY CONCERN
Diagnosed fuel consumption problem. Plug in intelligent tester and code P0500 was shown.
P0500 vehicle speed sensor malfunction was (not working).
Reconnected vehicle speed sensor plug which was loose and road tested around the workshop and there was no code given.
N.B. Customer notified to use vehicle and give report after satisfaction.
16.2 The Respondent was not satisfied with the first report and demanded a second examination. The second report is marked ‘Exhibit ‘A2’ and reads thus:’
“REPORT FOR SD 010 ON COROLLA
Full diagnosis with intelligent tester shows no fault found at present or in the memory.
C’O test carried out and found to be within limits.
No petrol leaks found or signs of high fuel usage.
Sealed tank test done. We filled tank and is connected flap KM, 48211. Vehicle travel for a week tank again filled KM 48565 30.46 litres = 354 Km’s.
Driving conditions such as speed, load etc. can effect the figures. They should under normal conditions be about 10L/100KM allowing for how different people fill the tank the figure seems fair.”
16.3 Even though both reports are undated, Mr Woodard was able to identify the report that was written first.
17. Mr Woodard explained his findings as follows when examined by the Applicant’s Counsel:
“Q What is meant by Code P 0500
A Speed [Speedometer] sensor malfunction.
Q If it [speedometer light] comes on what do you do.
A If light comes on you take it to the dealer. [The] speedometer records speed. The odometer will not move if [the] speedometer is not working. The two are connected.
Q What is the effect of the odometer if it is disconnected will distance be recorded.
A No, impossible
Q The excessive fuel consumption can it be caused by speed [speedometer] cable coming loose.
A Yes, possible.”
Q Could [the] speedometer be disconnected all the time?
A Impossible, there would be no reading if it was.
(Record pages 78-79)
“Q The reason consumption was excessive could it be caused by loose cable or cable disconnected.
A Yes, possible.
Q Why [would the speedometer cable be disconnected] if the motorvehicle was new.
A It could be caused either by [the fact that the speedometer cable] was not properly connected or [it was] removed.
Q If the cable was not properly connected could it go unnoticed by the driver
A No it shouldn’t.”
(Record page 79)
- Extracts of the evidence of Mr Woodard under cross examination read thus;
A Honestly, no
Q What do you mean that the odometer was not properly connected.
A The cable and clips must be disconnected to remove it. It may also be that it was not properly connected.
Q The problem started from onset, what could be your input
A No complaints were brought to our attention when the car was brought to us for service.”
Q Assuming the motorvehicle had 60 litres per tank would it give proper reading if it was faulty, i.e. the date and time
A No, if the cable was faulty it wouldn’t give correct readings of distance travelled.
Q If motorvehicle had a 60 litre tank full, could it be reasonable for it to consume 50 litres of fuel in 2 days.
A Can’t tell. I do not know. You can travel and consume 50 litres in 2 days. Also you can consume 50 litres per week. It is not consistent especially if driver is very busy.
Q If speedometer is connected can it come loose
A Yes, it can come loose even if properly connected.
- Mr Woodard reiterated his earlier evidence as follows in re-examination:
“Q Could [the] speedometer go loose at [any] time
A Yes, it can
Q What would indicate that
A Dashboard signal
Q: It can come loose even of the clips are on
Q Notwithstanding the clips
A Yes if they are loose it may come off. But if it comes off the dashboard indicator will come on even if the motorvehicle has a defect.”
(Record page 81)
- The evidence of Mr Woodard confirmed the following facts.
20.1 At certain erratic intervals the speedometer of the said motorvehicle was not working as a result of a malfunction of a speedometer sensor. This defect was discovered by Leites Toyota in their first examination of the motorvehicle and was recorded in exhibit A1.
20.2 The speedometer is connected to the odometer. If the speedometer is not moving, the odometer will also not work. The speedometer measures the speed of the motorvehicle and the odometer measures the distance it has travelled. During the intervals when the speedometer did not work the odometer did not record the distance travelled. A faulty odometer cannot give a correct reading of the distance travelled.
20.3 The recording of the excessive fuel-consumption complained of by the Respondent could have been caused by the malfunction of the speedometer. A loose or disconnected cable could have been the cause of the malfunction of the speedometer.
20.4 A malfunction of the speedometer cable can occur even in a new motorvehicle. This abnormality can be caused by a cable that came loose or one that was removed. If a speedometer cable is not properly connected it can easily come loose. It can also come loose even if it is properly connected. The driver of the motorvehicle should however be able to tell when the odometer as well as speedometer is no longer running. There should be an indicator on the dashboard of the motorvehicle that points to a malfunction of these instruments.
20.5 If the speedometer had been disconnected continuously, there would be no recording at all of the distance travelled by the motorvehicle. The fact that exhibit R1 shows inconsistency in the recordings regarding the distance travelled and the number of litres of fuel consumed per kilometer indicates that the malfunction of the speedometer and consequently the odometer was intermittent.
20.6 Mr Woodard did not personally attend to the repairs on the motorvehicle when brought in at Leites Toyota for regular service. He did not therefore have a service history of the motorvehicle. He was not in a position to tell when the malfunction on the speedometer began and how often it recurred.
21. Mr Woodard was further asked about the figures that are recorded in exhibit R1 to explain their meaning in relation to his findings. Mr Woodard could not verify the figures, infact he distanced himself from the contents of exhibit R1. Mr Woodard’s evidence on this point reads thus:
“Q What could these figures [exhibit R1] mean
A The figures were never brought to our attention. We have no control over the figures.”
(Record page 80)
- The evidence of the Applicant is corroborated by that of Mr Woodard regarding the irregular running of the odometer. The Court is satisfied that the odometer in the said motorvehicle was defective. That defect affected its capability to adequately record data. As a result incorrect data was fed into the Point of Sale device which eventually was transmitted to the Nedbank computer. Mrs Esakowitz gave evidence which was based on a computer print-out (exhibit R1) that contained incorrect data. The analysis that Mrs Esakowitz made and the conclusions that she drew were irregular since they were based entirely on data that was incorrect.
- Mrs Esakowitz testified that, on a monthly basis Nedbank Ltd sent the Respondent statements exactly the same as those presented in Court in terms of exhibit R1. The Respondent was therefore made aware of the irregular recording in the computer print-out. For example, on each of the three (3) days in exhibit R1 viz. 30/01/2005, 01/02/2005 and 16.02.2005 the odometer reading reflected the figure 160. That recording was abnormal in that it meant that the motorvehicle had not moved between the period 30th January 2005 to 16th February 2005 yet it had been regularly filled with fuel during that period. The Respondent knew about the irregular and bizarre transactions in its bank records as early as February 2005 but failed to take the necessary steps to investigate the cause of the abnormality. There is no explanation from the Respondent for failing to investigate an obviously abnormal transaction that recurred monthly in its records. The Respondent has failed to prove any misconduct against the Applicant. There is no evidence before Court of loss or misappropriation of fuel or misuse of the motorvehicle. The dismissal of the Applicant was therefore unjustified and unfair.
- The Court has further noted that Mrs Esakowitz (in her evidence) relied completely on transactions that are recorded in a computer print-out (exhibit R1). Exhibit R1 was presented before Court to prove the truth of its contents. Mrs Esakowitz did not witness events as well as the data that was recorded in the Point of Sale device. There was another person, who did not testify before Court, who allegedly fed data into a Point of Sale device, which device transmitted information into the computer system. No one has testified that the number of litres of fuel which appeared on exhibit R1 were actually sold and delivered to the Applicant. The Applicant has denied that the alleged excessive fuel that Esakowitz testified on was actually delivered. The Respondent has failed to produce proof viz. the slips that were signed by the Applicant when purchasing fuel. Mrs Esakowitz cannot testify that the contents of exhibit R1 are complete, true and correct because she does not know that statement as a fact.
- Exhibit R1 is clearly hearsay, and hearsay is inadmissible. There is ample authority in support of that principle.
25.1 “[Hearsay evidence] is evidence of statements made by persons not called as witnesses which is tendered for the purpose of proving the truth of what is contained in the statement per WATERMETER, J in Estate de Wet v de Wet, 1924 CPD 341. Such evidence is not admissible.”
CLASSEN CJ; DICTIONARY OF LEGAL WORDS AND PHRASES, Volume 2, Butterworths, 1976, SNB 409 01981 0 at pages 167-168.
25.2 “… hearsay is not admitted. Thus, if a fact is to be proved by oral evidence, it is obvious that the evidence must be of a person who has directly perceived the facts to which he testifies. If something is alleged to have been seen, the evidence must be that of the person who says he saw it; if heard, that of a person who says he heard it; otherwise it would be impossible to test by cross-examination the truth of the testimony, and the law rejects evidence which cannot be tested.”
SAUNDERS JB: WORDS AND PHRASES LEGALLY DEFINED, 2nd edition, volume2, Butterworths, 1969 SBN 409 08032 1 at page 193.
25.3 “A witness, it is said, may depose to the facts which he has observed, but he may not ordinarily state … opinions founded upon facts of which he has no personal knowledge.”
HOFFMANN AND ZEFFERTT: THE SOUTH AFRICAN LAW OF EVIDENCE, 4th edition, Butterworths, 1988 ISBN 0 409 03325 at page 84.
- The Court accordingly rejects the evidence of Mrs Esakowitz particularly the portion that is based on exhibit R1 on the basis that it is hearsay. Before Court there is no evidence of irregularity or impropriety on the part of the Applicant. The Court reiterates that the dismissal of the Applicant was unreasonable and unfair.
- At the time of dismissal the Applicant was earning E5, 316.72 (Five Thousand Three Hundred and Sixteen Emalangeni Seventy Two Cents) per month. He was a breadwinner, he had four (4) minor children that were dependent on him and his father. After dismissal the Applicant depended on his mother – in –law for financial assistance to meet his expenses. The Applicant was employed by the Respondent in September 1999 and dismissed in May 2006. He served the Respondent with a clean record.
- The Applicant has prayed for compensation for unfair dismissal, Notice pay, Additional Notice pay and payment for severance allowance. About four (4) months after dismissal, the Applicant found employment at Swazi Oxygen Ltd, which however did not last. The Applicant was employed for four (4) days in that company. Thereafter the Applicant started a business. It is not clear how long it took that business to break-even (if at all). The Applicant has succeeded in proving his innocence and has incurred legal costs in the process. Fairness dictates that he be compensated for this expense.
- Wherefore the Court Orders payment as follows:
29.1 Compensation(6 months pay) 31.900-32
29.2 Notice pay 5,316-72
29.3 Additional Notice 4,430-60
29.4 Severance Allowance 11,076-50
29.5 Costs of suit
INDUSTRIAL COURT JUDGE
Applicant’s Attorney Mr M. Dlamini
Martin Dlamini Attorneys
Respondent’s Attorney Mr M Sibandze