It's rare to see equestrian metaphors in judgments from the Labour Court, but in Samancor Chrome Ltd t/a Eastern Chrome Mines v NUM obo NE Matshebele, the Labour Appeal Court saw it fit to start its judgment with one:
"It has been said of some cases that the effort to prosecute them is akin to flogging a dead horse. This case is not of that kind; rather, this horse was stillborn."
The stillborn case involved an employee accused of using company loyalty points without authorisation, which led to his dismissal. At the arbitration, Samancor led only one witness, an assistant manager at Pick 'n Pay, who explained how Smart Shopper points work. In addition to this, Samancor also submitted a bundle of documents, including a forensic report containing damning evidence of the employee's guilt. However, none of these documents were actually introduced into evidence by a witness, and the forensic investigator was not called to testify regarding the report's contents
The Commissioner found that on the body of the above evidence, there was insufficient proof to establish the employee's guilt. Samancor then sought to review the Commissioner's decision, but the Labour Court dismissed the review, and the Labour Appeal Court ("LAC") upheld this decision stating that Samancor's failure to present a coherent and complete case at arbitration led to its downfall.
This case underscores the critical importance of presenting a comprehensive and compelling case at arbitration. Documents alone are insufficient; witnesses must be called to testify to their contents to avoid the documents being deemed hearsay evidence. Arbitration is the forum where all relevant evidence must be presented and failure to do so can have severe consequences, as demonstrated in the Samancor case. Review courts are not opportunities to introduce new facts. Litigants must be prepared to present their strongest case at the initial arbitration hearing. Ultimately, reviews cannot rescue a poor arbitration – the key to success lies in a thorough and well-planned presentation of evidence from the outset.
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