Tedco Plastics (Pty) Ltd v NUMSA & others (2000) 21 ILJ 2710 (LC)


An act of self defence against an aggressive act cannot reasonably be construed as provocation of a subsequent more violent provocation by the original aggressor.


The employee was dismissed for repeatedly assaulting a female co-employee with a pipe on her back. On review before the Labour Court, it was held that the CCMA had misdirected itself in relying on an unsubstantiated allegation of provocation which mitigated the assault. The court referred the matter back to the cCMA to be reheard.

Extract from the judgment:

1. This was an application for a review of the arbitration award handed down by the fourth respondent which application is brought in terms of section 145 of the Labour Relations Act, 66 of 1995 (“the Act”). The second respondent was dismissed from the applicant’s employ after being found guilty of assault on a fellow employee, Ms Thotho (hereinafter referred to as “Thotho”). The nature of the assault was that the second respondent had repeatedly struck Thotho on the back with a metal pipe weighing between 4 and 5 kilograms. It emerged in the course of the evidence before me that Thotho was also subjected to discipline arising from the same incident and received a penalty of a final written warning. What was not apparent from the evidence was the exact nature of the offence with which Thotho had been charged.

2. The second respondent disputed the fairness of his dismissal and referred the matter to arbitration before the CCMA. At the CCMA it was only substantive fairness which was in issue. The arbitration proceedings took place before the fourth respondent and an award was handed down on or about 4 March 2000. The fourth respondent found that the second respondent did strike Thotho as alleged. However, he also found that Thotho had “admitted provocation”. Nevertheless, he found that the assault by the second respondent was “an entirely excessive response to whatever verbal or physical attack he faced from Thotho.” He found further that the second respondent “seems to have decided to take the law into his own hands and about teaching her a lesson albeit in anger” (sic). The union representative argued before the fourth respondent that in the circumstances dismissal was not appropriate and suggested that suspension for a month or two would have been more appropriate. The fourth respondent’s finding in that regard was as follows: “I agree that suspension would have been more appropriate. However, [the second respondent’s] response to strike a female co-employee with a hydraulic pipe is excessive.” The fourth respondent goes on to make the following award:

“1. In all the circumstances the dismissal is found to have been unfair and is substituted by a final written warning valid for 12 months as from the date of this award.

2. The employee is reinstated in his employment with effect from 13 March 2000.”

3. It is the aforementioned award which the applicant seeks to have reviewed and set aside on the basis that it is vitiated by defects in the sense of certain gross irregularities in the conduct of the arbitration proceedings as contemplated by the provisions of section 145(2)(a)(ii) of the Act. The review was opposed by the first and second respondents on whose behalf it was submitted that the application amounted to an appeal under the guise of a review, that the fourth respondent could not be found to have committed a gross irregularity as contemplated by the provisions of the aforesaid section of the Act and, finally, that the fourth respondent’s finding was justifiable in relation to the reasons given for it.

4. The thrust of the applicant’s argument in support of the contention of gross irregularity in the conduct of the proceedings was threefold. In the first instance it was submitted that the fourth respondent’s award was premised on certain factual findings, primarily the finding of provocation on the part of Thotho. The fourth respondent found that Thotho had admitted provocation. It was submitted that this finding was not justified on the evidence. It was also submitted that in the absence of being able to conclude that Thotho admitted provocation, the issue which the fourth respondent had to consider was whether the facts sustained a finding that there was provocation by Thotho. It was contended that the fourth respondent failed to weigh up the evidence of Thotho and the second respondent. If he had done so he would have been constrained to accept the version of Thotho in preference to that of second respondent and would have had to conclude that no provocation had in fact taken place.

5. The second leg of the case on applicant’s behalf was that the fourth respondent demonstrated an erroneous understanding of the legal effect of provocation...

9. Thirdly, it was submitted that the fourth respondent had interfered with the sanction imposed by the applicant in circumstances where the substitution of a different sanction was arbitrary and induced a sense of shock…

10. That being the case I am satisfied that unless the finding of provocation by the fourth respondent is sustainable on the facts before him he has committed a misdirection so serious that it amounts to a gross irregularity in the proceedings.

11. In the circumstances neither the express finding that Thotho admitted provocation, nor the implied finding that provocation in fact occurred, can be supported on the evidence. The fourth respondent’s summation to the effect that there was provocation, thus, constituted a misdirection in the assessment of the evidence. As already stated, I am satisfied that the finding of provocation was the lynchpin sustaining the fourth respondent’s decision. It was the finding of provocation that suggested to him that the sanction of dismissal imposed by the applicant was inappropriate and which allowed him to mitigate the sanction. In such circumstances, if the finding of provocation falls away, so must the entire outcome. I am satisfied, therefore, that the fourth respondent’s error in regard to the presence of provocation was sufficiently gross as to result in the failure of justice and the award stands to be set aside on that ground.

12. Further, and in any event, I am satisfied that the fourth respondent’s award reveals a failure on his part to understand and apply the law relating to provocation. His references to provocation do not include giving any specific legal content to the term. Provocation is recognised in our criminal law and law of delict as a basis for excusing or mitigating the consequences of what would otherwise clearly be criminal or delictual conduct. The debate has not been settled as to whether provocation removes the unlawfulness of the conduct, or merely mitigates (or extinguishes) the punishment or damages arising therefrom. (See: Neethling Potgieter & Visser Law of Delict 3 ed at 91-92 and Snyman CR Criminal Law 2 ed at 183ff). Whatever the correct legal categorisation, however, the very fact that a person’s actions were a reaction to the conduct of another does not mean that the law will come to their aid. Certainly, in the case of delictual liability, it appears that two requirements will have to be met, namely, that the provocative conduct must be such that the reaction to it by way of physical assault was reasonable, ie would a reasonable person in the position of the person have acted as he did in the face of the provocation; and, that the conduct must be an immediate and reasonable retaliation, ie it must follow immediately on the provocation and not be out of proportion to the nature and degree of the provocative behaviour. (Neethling et al (supra) at 94).

13. Had the fourth respondent considered the aforegoing principles he would not have been able to come to the conclusion, even on the second respondent’s version, that the assault with the pipe had in fact been “provoked”. This is so because, in the first instance, the assault followed Thotho’s attempt to ward off his fist and her unsuccessful attempt to hit the second respondent was a spanner, which conduct should in the circumstances have been viewed not as aggressive but defensive. In the second instance, the response followed after a period of time in which the second respondent left the scene of the prior incident and then returned with a weapon, having decided to take the law into his own hands (apparently as a result of applicant’s inaction in dealing with Thotho despite his having raised a complaint about her on two previous occasions). His response was thus not immediate and the decision to return to the scene with the weapon commenced a new sequence of events. In the third and final instance, the level of violence of the assault far outweighed anything that Thotho might have done. It was completely out of proportion to the spanner incident, in which the second respondent was not actually hit. Indeed, the fourth respondent in his award himself concludes that the assault was “an entirely excessive response to whatever verbal or physical attack he faced from Thotho”. Furthermore, the fourth respondent found that the second respondent had taken the law into his own hands. This finding postulates a rational decision to retaliate and excludes the possibility of arguing that his response was immediate and somehow less serious.

14. In all the circumstances it is clear that the factors which would have justified reliance on provocation to reduce the sanction were simply not present, nor indeed were they found to be present by the fourth respondent. The fourth respondent’s reliance upon “provocation”, in such circumstances, to alter the sanction therefore displays a complete misconstruction of the legal nature and effect of the defence of provocation. In that respect the fourth respondent’s reasoning process was vitiated by an error sufficiently fundamental as to allow the conclusion that a gross irregularity took place.

15. The third review ground concerns the fourth respondent’s decision to replace the sanction of dismissal imposed by the applicant with a lesser sanction. In view of the conclusions which I have already reached on the earlier grounds it is not necessary for me to make a finding or to decide the matter with reference to this ground. I do note, however, that since I have found an absence of evidence to sustain a finding of provocation and since the assault by the second respondent therefore has to be viewed as having been unprovoked, one is inclined to conclude that the second respondent’s conduct so grossly exceeded the bounds of acceptable behaviour and should be regarded as so excessive that any sanction short of dismissal should shock and alarm this Court. For the reasons stated, however, it is not necessary for me to make a finding in this regard.