Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation Mediation And Arbitration and Others (JR2584/2012)  ZALCJHB 4 (14 January 2015)
Where there are two conflicting versions, the discharge of the onus does not depends on a mechanical quantitative balancing out of the pans of the scale of probabilities but on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and an ascertainment of which of the two versions is the more probable.
In dealing with two conflicting versions, the Commissioner simply found that he '...had no basis on which to discredit any of the two versions.' The crux of the Commissioner's decision was that '...where the evidence of both sides is evenly balanced the employer cannot be deemed to have succeeded to discharge its onus.' It was, therefore, on this basis that he found against the employer.
On review, the LC held that this was an incorrect way of assessing evidence and deciding if the onus of proving the misconduct on a balance of probabilities has been discharged. Instead, where there are two conflicting versions, the discharge of the onus depends on a qualitative assessment of the truth of the evidence of the witnesses and of which of two versions is the more probable.
Extract from the judgment:
 In this matter, the Commissioner found that the evidence of both parties was evenly balanced, and as a result he was unable to come to the conclusion that the Applicant had discharged its onus. The Commissioner, therefore, decided the dispute before him purely on the basis of onus of proof.
 As the 'pans of the scale' were, according to the Commissioner evenly balanced, his decisive finding was that in such an instance the employer '...cannot be deemed to have succeeded to discharge its onus.'
 This ordinarily occurs where a trial court is not satisfied with the version of either party as to exactly what occurred and ends up deciding the matter simply on the 'onus' of proof by an order for absolution from the instance.
 The approach adopted by the Commissioner attempts to resemble the conclusion reach in National Employers' General Insurance Co Ltd v Jagers, where Eksteen AJP held thus:
 '...Where therefore the probabilities are evenly balanced, and where there can be no finding on the relative credibility of the witnesses, it seems to me that the only conclusion to which the Court could have come was that the respondent had failed to discharge the onus which rested on him.' My reading of the above-quoted conclusion highlights two pivotal aspects which the Commissioner missed in the present matter. The first is that there has to be a balancing of the probabilities. The second is that there has to be a consideration of the credibility of the witnesses.
 In my considered view, it is only when these two undertakings do not offer any assistance that a court (or a commissioner in the present context) would inevitably come to the conclusion that the party upon whom the 'onus' rested had failed to discharge same.
 In deciding on an alleged unfair dismissal dispute, a commissioner of the CCMA goes by balancing the probabilities. In making a decision on the dispute before him or her, the appointed commissioner establishes facts by a preponderance of probability. That is the ordinary standard of proof in civil proceedings.
 It is, accordingly, a CCMA commissioner's duty to weigh up or balance the probabilities. It has to be accepted that in so doing, the commissioner would not exclude every reasonable doubt. The standard of proof in civil proceedings is lower than that the criminal standard of proof beyond reasonable doubt.
 It is worth reiterating that there is a clear distinction between probabilities and credibility. At times, these two concepts are not dealt with in their proper context. In my view, the probabilities are at the heart of the enquiry in arbitration proceedings. They have to be established as they are decisive to the outcome.
 Although I align myself with the judgment of Fourie AJ in Solidarity obo van Zyl v KPMG Services (Pty) Ltd and Others in relation to the effect of failure to address the credibility of the witnesses at arbitration, I find that failure to weigh up the probabilities can amount to a reviewable irregularity. I expand on this later in this judgment.
 For a commissioner to simply find that the evidence of both sides is evenly balanced and to, therefore, decide a dispute purely on the question of onus is wanting in the extreme. That is more so if the evidence of both sides is diametrically opposed, as it was the case in the present matter at arbitration.
 In Selamolele v Makhado, the approach to the question whether the onus has been discharged was dealt with as follows:
 'Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable.' In this matter, there was simply no attempt made to weigh up or test any of the conflicting versions against the inherent or general probabilities. The Commissioner took the view that neither of the two conflicting versions could be discredited.
 Logically, I find difficulties in accepting the Commissioner's approach. As there were two conflicting versions before him, the Commissioner ought to have accepted that these versions were mutually destructive. They both could not stand. The technique that was espoused by the SCA in Stellenbosch Farmers' Winery Ground Ltd and Another v Martell et Cieto resolve factual disputes identifies three considerations, they being (a) credibility of the witnesses, (b) their reliability, and (c) the 'probabilities'.
 The last of these considerations was explained to necessitate '...an analysis and evaluation of the probabilities or improbabilities of each party's version on each of the disputed issues.'
 As indicated herein before, there was no attempt made by the Commissioner to weigh up the probabilities or improbabilities of the two conflicting versions before him.
 In my view, this is not a matter where it can be said that there were simply no probabilities; one way or the other. There was the testimony of three witnesses who testified before the Commissioner at arbitration. In addition, there was documentary and photographic evidence that was tendered by the parties, and upon which evidence was led. There was, even, much in the way of surrounding circumstances to create strong probabilities.
 In African Eagle Life Assurance Co Ltd v Cainer, it was held that once probabilities exist, they '...have to be weighed up to determine whether the plaintiff has discharged its onus...'
 In the context of this matter, the following passage from Stellenbosch Farmers' Winery Ground Ltd and Another v Martell et Cie(supra) is also of relevance:
 '...In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it...' It is, therefore, clear that the ultimate determination of whether the onus of proof has been discharged is a final step after the assessment of (a) the credibility of the witnesses, (b) their reliability and, most importantly, (c) the 'probabilities'.
 It is possible for a Commissioner to arrive at his decision simply on the probabilities and without having to make specific findings of the credibility of the witnesses. In National Employers' General Insurance Co Ltd v Jagers (supra), it was held thus:
 '...it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities.' In the present matter, the Commissioner went on to deal with the final step of determining whether the onus of proof was discharged without having embarked upon the consideration of the probabilities. He did not even attempt to make any finding on the credibility of the witnesses that testified before him.
 It is, therefore, my judgment that the Commissioner not only misconceived the nature of the enquiry, he equally misconceived his duties in connection with the proceedings before him. This amounts to gross irregularity as contemplated by s. 145(2)(a)(ii) of the LRA.
 Having found that the Commissioner committed 'a gross irregularity' within the meaning of s. 145(2)(a)(ii), as aforesaid, I am called upon to determine if the award is, in any event, one that a reasonable commissioner could not reach.
 The enquiry into the reasonableness of the decision arrived at by the Commissioner requires that I examine the merits of the case. This task is informed by the standard review test in Sidumo, as it was explained in Herholdt v Nedbank Ltd (supra) in the following terms:
 '...That test involves the reviewing court examining the merits of the case 'in the round' by determining whether, in the light of the issue raised by the dispute under arbitration, the outcome reached by the arbitrator was not one that could reasonably be reached on the evidence and other material properly before the arbitrator. On this approach the reasoning of the arbitrator assumes less importance than it does on the SCA test, where a flaw in the reasons results in the award being set aside. The reasons are still considered in order to see how the arbitrator reached the result. That assists the court to determine whether that result can reasonably be reached by that route. If not, however, the court must still consider whether, apart from those reasons, the result is one a reasonable decision maker could reach in the light of the issues and the evidence.' In embarking upon this task, I am mindful of the fact that I must avoid 'judicial overzealousness' in setting aside an award which does not coincide with my own views.
 The decision reached by the Commissioner in this matter was that the Applicant had not succeeded in proving that Mr du Plessis was fairly dismissed and therefore the dismissal was substantively unfair.
 In this matter, I am unable to divorce the archetypal conclusion that the dismissal was substantively unfair from the decisive finding that the Applicant did not succeed to prove that the dismissal was fair. The latter was to me the outcome or the decision reached by the Commissioner in this matter.
 All things considered, it is my judgment that the Commissioner's award is clearly one that no reasonable decision maker could have reached. The Commissioner had himself found that the evidence of the Applicant's witness was, on its own, satisfactory and appeared reasonably possibly true. He, particularly, could not find any basis to discredit the version of Mr Joubert, the Applicant's witness. These two factors, when viewed against the seriousness of the misconduct charges that were levelled against Mr du Plessis, render the Commissioner's decision unsustainable on review. The Commissioner's decision, in my view, clearly fall outside the realm of what is reasonable.
 It is not my task to determine the merits of the dismissal de novo. Mine is to simply examine the decision reached by the Commissioner against what is reasonable.
 I have already identified the decision for consideration in this regard. It is, to me, one that no reasonable decision maker could have reached. It was informed by the Commissioner having misconceived the nature of the enquiry and his duties in connection therewith.
 It is axiomatic that a reasonable commissioner could not have misconceived the nature of the enquiry, let alone his duties in connection with such an enquiry. It is my judgment, therefore, that the Commissioner did not only commit gross irregularity in the conduct of the arbitration proceedings, his award is equally one that no reasonable decision maker could have reached under the circumstances.
 In the circumstances of this matter, I come to the conclusion that the application for review must succeed. As for costs I am of the view that each party should bear their respective costs. The requirements of law and fairness dictate that I should not condemn in costs Respondents who were simply defending a relief that was afforded to them by a CCMA commissioner.
 I, accordingly, make the following order:
- The arbitration award handed down by Commissioner Harold NtaleMatsepe on 10 September 2012 under case number LP1053-12 is hereby reviewed and set aside.
- The dispute is referred back to the First Respondent for arbitration de novo before a different commissioner.
- There is no order as to costs.