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[2010] ZAGPPHC 195
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Mnguni v Mohajane NO and Others (16167/09) [2010] ZAGPPHC 195 (15 October 2010)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
NO:
16167/09
DATE:
15/10/2010
IN THE MATTER BETWEEN:
MERRIMAN CYPRIAN XOLANI
MNGUNI
................................
APPLICANT
AND
DIRECTOR KH MOHAJANE NO
(MEMBER OF THE APPEALS
AUTHORITY,
BEHAVIOUR MANAGEMENT,
SOUTH
AFRICAN POLICE
SERVICES)
...............................................
FIRST
RESPONDENT
THE PROVINCIAL
COMMISSIONER:
GAUTENG SOUTH AFRICAN
POLICE SERVICES
............
SECOND
RESPONDENT
THE NATIONAL
COMMISSIONER:
SOUTH AFRICAN POLICE
SERVICES
….........................
THIRD
RESPONDENT
JUDGMENT
BAM, AJ
[1] The
applicant, a member of the South African Police Services, with the
rank of inspector stationed at the Crime Prevention Rading
Unit at
Booysens, Johannesburg, was found guilty by a disciplinary tribunal
on two counts of misconduct having contravened the
provisions of
Regulation 20(z) of the South African Police Services’
Disciplinary Regulations. The sentence imposed was
a dismissal from
the police.
[2] The applicant’s
appeal against the conviction and dismissal was dismissed by the
first respondent on 11 August 2008.
[3] Subsequently,
on 20 March 2009, the appellant filed this review application in
terms of Rule 53 of the Rules of Court. The
basis of the review is
the allegation that the first respondent on appeal, failed to
properly apply his mind to the evidence which was presented before
the disciplinary tribunal, which amounted to a misdirection and an
irregularity, hence this application for review.
[4] Mr
Hulley appearing for the respondents, raised four points
in
limine
. (The first three points turned
upon the alleged lack of jurisdiction of this court):
It was contended that
the matter should have been referred to the CCMA or bargaining
council, having jurisdiction;
The
applicant
failed to show that the first
respondent was performing administrative actions under the
provisions of Act 3 of 2000 (PAJA);
The applicant failed to
comply with the periods prescribed in PAJA;
The applicant appealed
the decision of the first respondent without having appealed the
decision and finding of the chairman of
the disciplinary tribunal.
[5] Regarding
the first three points, applicant contended that this application for
review was based upon the irregularities in
the
quasi-judicial
functions of the disciplinary tribunal and the first respondent,
which per se is subject to review by this court.
It was contended by
the applicant, with reference to
Fredericks
and Others v FEAT 3(C)
[2001] ZACC 6
;
2002 (2) SA 693
(CC) at 713
[40]
, that this court’s jurisdiction is ousted by
the provisions of section 157 of Act 66 of 1995, the Labour Relations
Act (LRA).
[6] The
most recent decision regarding the issue in question is the matter of
Gcaba v Minister of Safety and Security
2010 (1) BCLR 35
(CC) in which matter
justice Van der Westhuizen, writing for the full court, found that
the LRA does not destroy causes of actions
and where a remedy lies in
the High Court, section 157(2) of the LRA cannot be read to mean that
it no longer lies there. (See
par. 7(2) and 7(3)).
[7] Mr
Hulley, appearing for the respondent’s, argued that the actions
of the disciplinary tribunal and the subsequent dismissal
of the
appeal to the first respondent, constitute administrative actions as
contemplated in Act 3 of 2000, the Promotion of Justice
Act (PAJA)
and that the applicant, consequently had to comply with the
provisions of PAJA. In this regard the applicant was obliged
to
prove that the first respondent was performing an administrative act
as well as that the applicant complied with the time periods
provided
for in PAJA. Mr Hulley referred me to several decided cases in this
regard namely:
Chirwa v Transnet
Limited and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
Gcaba (supra)
(2010)
(1) SA 238
(CC) and
Sapu and Another v
National Commissioner of the SA Police Services and Another
(2005)
26 IJL 2403 (CC) 9. In
Gcaba supra,
par. (74) the court held as follows:
“
The
specific term ‘jurisdiction’ … has been defined as
the power or competence of a court to hear and determine
an issue
between parties.”
And in
paragraph (75); “
Jurisdiction is
determined on the basis of the pleadings as Langa CJ held in Chirwa
and not the substantive merits of the case.”
“
In the event of the court’s
jurisdiction being challenged at the outset (in limine) the
applicant’s pleadings are the
determining factor.”
[8] In
view of the guidelines and the
ratio
decidendi
of
Gcaba
above, it appears that the applicant,
in formulating his case against the SA Police Services, throughout
based his complaints on
the quasi-judicial functions of either the
disciplinary tribunal and/or the first respondent. To my mind it is
clear that the
applicant did not have in mind to address any
administrative action.
[9] There can be no doubt
that the procedure before the disciplinary tribunal and the first
respondent as appeal tribunal, was “quasi-judicial
process”
falling under the provisions of rule 53 of the rules of court.
[10] Rule
53 does not provide for a time limit in which the review should be
brought – although a reasonable time is contemplated,
calling
for a reasonable and acceptable explanation why the delay, if any, in
the launching of the review application occurred
and why it should be
condoned.
[11] In
this matter the applicant’s appeal to the first respondent was
dismissed in August 2008 and this review application
was instituted
on 20 March 2009, some seven months after the dismissal of the
appeal. The applicant’s explanation centres
on a pecuniary
problem as a result of his dismissal from the SA Police Services.
After having perused the application and having
heard the arguments
of counsel I do not regard the delay unreasonable in the
circumstances, and accordingly I find that the explanation
advanced
by the applicant is reasonable and acceptable.
[12] The
respondents’ fourth point
in
limine
turns upon the applicants
alleged attack on the dismissal of the appeal by the first respondent
and not per se at the finding of
the disciplinary tribunal.
The
fons et origine
of the applicants application for review starts with the hearing
before the disciplinary tribunal. The decision of the disciplinary
tribunal was on appeal confirmed by the first respondent. The two
decisions are, for the purposes of this review, inseparable.
It is
to my mind clear that the applicant took the decision of the
disciplinary tribunal on appeal to the first respondent on
the same
basis as the grounds of review indicated by the applicant to form the
basis of this review application.
[13] Rule
52(2) of the Rules of Court requires from an applicant to set out in
his founding affidavit the grounds, facts and circumstances
upon
which an application for review should be reviewed and the decision
set aside. In this regard Mr. Van Schalkwyk, for the
applicant,
referred me to paragraph 7 of the founding affidavit which reads as
follows:
“
I
respectfully submit that the first respondent has failed to apply his
mind to the relevant issue and the evidence led at the disciplinary
hearing and that the reasons for his decision to dismiss my appeal
are vague.”
Mr.
Van Schalkwyk’s submission was that the contents of this
paragraph satisfy the requirements of section 52(2) referred
to
above.
[14] The
grounds for review are contained in the applicant’s founding
statement that the first respondent did not apply his
mind in (a)
accepting the evidence adduced before the disciplinary tribunal and
(b) finding that the said evidence has proved the
guilt of the
applicant pertaining to counts 2 and 3. However the applicant
referred to the (elaborated) notice of appeal against
his conviction
and the sanction imposed on the 15
th
of January 2007. This notice of appeal reads as follows:
“
Ad
conviction
Appellants 1, 3 and 4.
1. The
presiding officer erred in finding that the respondent proved on a
preponderance of probabilities that the appellants did
indeed commit
an act of corruption and therefore contravened section 20(z) of the
South African Police Service Disciplinary Regulations.
2. The
presiding officer further erred in accepting the evidence of the
witness Clifford Nyoni notwithstanding material contradictions
in his
evidence.
3. The presiding
officer further erred in not taking into consideration that the said
witness and the motive and implicate the appellant’s
falsely.
4. The
presiding officer further erred in that the video footage was
accepted as correct notwithstanding the fact that the video
footage
which was relied upon was an edited version which could not be relied
upon.
5. The presiding
officer further erred in that he rejected the versions of the
appellants as false notwithstanding the fact that
their versions were
corroborated by witnesses called on their behalf.
6. The presiding
officer should have found that the respondent did not prove its case
against the appellants on a preponderance
of probabilities.”
[15] The
applicant further refers to a supplementary notice of appeal. This
document, however, contains arguments and does not
comply
with what is required of a notice of appeal.
[16] The
“irregularity” allegedly committed by the first
respondent was to confirm the finding of the disciplinary hearing
chaired by senior superintendent Pacehai.
The
criticism was levelled at the first respondents’ confirming of
the convictions and the sanction imposed by the disciplinary
committee. From the outset I want to record that the grounds of
review upon which the applicant bases this application remained
the
same as the grounds for appeal contained in the applicant’s
notice of appeal.
FACTS
[17] The
witness Clifford Nyoni entered the RSA from Zimbabwe as an illegal
immigrant.
Nyoni was subsequently arrested
by members of the South African Police, a special unit, stationed at
Booysens Johannesburg. Nyoni
apparently became involved with corrupt
policeman who allegedly took bribes to release some of the arrested
people, mainly illegal
immigrants. It appears from the evidence that
Nyoni was perturbed about the way the police focused on illegal
immigrants and then
took bribes to have them released. In an effort
to expose the corruption at the said police station, Nyoni approached
a local
television broadcast channel and proposed to set a trap for
the corrupt policemen, to uncover the bribery and corruption.
Neither
Special Assignment nor Nyoni made an effort to contact any
policeman in this regard. Nyoni and Special Assignment then agreed
to set the situation in motion with the intention to trap the corrupt
policemen. The agreement apparently contained that Nyoni
would
become the “trapping agent” or “agent provocateur”
who would then expose the corrupt policemen.
For that purpose Nyoni
was supplied by representatives of Special Assignment with a “spy
camera” which name explains
a lot. The device is a very small
video camera hidden in some cover, a bag, and handled by the carrier.
Nyoni would talk to one
of the suspect policemen to set things in
motion and at the same time taking a video of whatever happened
thereupon. The procedure
further entailed that Nyoni would make
contact with one of the policemen in the police station, point out
one of the arrestees
and enquire whether that specific arrestee,
after having supplied the policemen with a name, could be released
upon the payment
of a sum of money. The policemen involved would
then tell what amount of money was required, usually R300-00, for the
release
of a specific person; he would take the money and then
release the person from where he or she was detained. The detainees
were
apparently awaiting trial prisoners who were shortly before
arrested on various charges including that of drunkenness,
prostitution
and illegal immigrancy. For some of these crimes
admission of guilt in the amount of R300-00 was the norm excluding
for illegal
immigrants. The latter category would be removed from
Booysens station to another police station to be kept in custody
pending
trial.
[18] Several
counts were preferred against the applicant for mainly the
contravention of regulation 20(z) of the Police Regulations.
Regulation 20(2) provides for any alleged misconduct by a member of
the SAPS which includes bribery and corruption.
[19] Nyoni’s
evidence regarding the applicant was as follows (page 150 of the
papers and further.)
“No
1 told me to go and wait outside. During that time when he asked me
how he could help, where I told him I am asking for
my sister he
asked me what I have brought for her. I told no. 1 money. He asked
me how much. I told him R300-00. That is when
he told me to go and
wait outside.”
“After
a while no 1 came and he was standing at the entrance and he told me
to hand over the money. It was all in R100-00
notes. I was giving
him R100-00 notes one by one. He said: put more, put more.”
“How
much did you give him. I gave him R300-00 and the lady was released
after that.”
“Presiding
officer: the lady was released? Yes she was released. Who took her
out of the room? Did she come out on her
own? I gave no. 1 the money
and he went inside. During that time the lady came out.”
“After
handing over this R300-00 to no. 1, did you receive a receipt? I did
not receive anything.”
“How
many people were in the room” … “What was done,
after the said people were put in room 6A. All the
detainees which
were in most cases ± 30 people. When they were put in that
room, relatives and friends would then be allowed
to come and talk to
their people. Those with money would be released. Those without
would be charged.”
“After
these incidents happened, this time you paid for the lady Nonhle, was
that the last time you went there? That was
the last time that we
went there.”
“Why did it
stop there?”
“The
executive producer of Special Assignment said that we have enough for
the whole story.”
[20] The video depicting
the whole operation was shown to the disciplinary hearing and the
witness Clifford Nyoni confirmed the
contents thereof.
[21] During
cross-examination Nyoni conceded that he was paid R3000-00 for his
efforts by Special Assignment.
[22] What
however, became apparent is that the video tape did not reflect the
incident where Nyoni met the applicant. Nyoni in
his evidence in
chief testified that he met the applicant at room 6A. The video, as
was conceded by Nyoni, did also not reflect
the situation when the
money (R300-00) was paid to the applicant. In this regard Nyoni
advanced an explanation which reflects
upon the representatives of
Special Assignment having “edited” the video tape for
broadcasting purposes. This reason
was advanced by Nyoni during
cross-examination when he alleged that the video tape contained
everything that took place during
his “dealings” with the
applicant.
[23] The
applicant’s defence was put to Nyoni during cross-examination
being that he conceded that he took money from Nyoni
which money was
intended for a fine of the amount of R300-00, for a specific person
whose name he could no longer remember, who
was as far as he
remembered arrested for drinking in public. The applicant could not
find he specific person when he called him
by the name supplied by
Nyoni and he thereafter returned the R300-00 to Nyoni.
[24] Nyoni
described but one incident which occurred between him and the
applicant. From the evidence it appears that this incident
occurred
in August 2005. According to Nyoni the woman who was released,
N
onhle, was later located by the police.
He, Nyoni, pointed this woman out to members of police force.
However, this woman did
not testify, no reason was advanced.
[25] The applicant
testified, and denied the allegations of bribery. He confirmed his
defence as was put to Nyoni during cross-examination.
[26] The
disciplinary committee then convicted applicant on two counts of
having contravened the provisions of section 20(z) of
Police
Regulations, counts 2 and 3. Applicant was acquitted on the count 1.
The residing officer of the disciplinary committee
did not advance
any reasons whatsoever for the conviction of the applicant on the
said two charges of bribery. What the court
however did was to refer
to the said two counts as being two separate counts, the one
allegedly committed in August and the other
in July 2005 as reflected
in the charge sheet. This was clearly a misdirection in that
evidence which was adduced, Nyoni’s
evidence, concerned only
one of the two charges, apparently the third count. According to
Nyoni’s evidence the incident
must have happened during August
2005. Count 3, the charge sheet, refers to the incident in August
2005. There was no other evidence
on record regarding the second
charge of which the applicant was also convicted. In this regard I
need to point out that the applicant
by way of a supplementary notice
of appeal inquired from the presiding officer senior superintendent
Pacehai to state the basis
for his conviction of the applicant on two
counts. There was no reply.
[27] It
was common cause that the applicant and the fellow police officers
standing trial
before of the disciplinary
committee, were charged in the local magistrate’s court on
several counts of bribery and corruption
flowing from the facts
stated by Nyoni. According to the applicant, during his evidence in
chief, the charges were however withdrawn
by the state after Nyoni
had testified in this disciplinary hearing. (The disciplinary
hearing was repeatedly postponed for various
reasons, after the
evidence of Nyoni was led, before applicant testified.)
[28] Mr
Hulley, for the respondents
submitted that
the fact that the applicant was released by the criminal court after
the case against him was withdrawn, is irrelevant
pertaining to the
disciplinary hearing. The guilt of the respondent in the
disciplinary hearing, had to be proved on a balance
of probabilities,
and this is what happened, according to Mr Hulley.
[29] Mr
Van Schalkwyk further argued that the disciplinary
tribunal
and the first respondent, on appeal, erred in having accepted the
evidence of Nyoni. The grounds of this contention by
Mr Van
Schalkwyk include his criticism that Nyoni was a self confessed
criminal in that he bribed the policemen, that the entered
the
republic as a illegal immigrant and further assisted the policemen to
commit crimes of corruption. Mr Van Schalkwyk further
contended that
the evidence pertaining to the use of Nyoni as a trap, in the
circumstances, should not have been accepted by the
disciplinary
hearing and should not have been confirmed by the first respondent on
appeal.
[30] Evidence
of traps used to
get convictions on certain
crimes in criminal courts has been criticized over many years. As a
result thereof a cautionary rule
has developed. Courts should be
careful in accepting the evidence of traps without considering issues
like hidden agenda. In
S v Chesane
1975 (3) SA 172
(T) at 173 the following was remarked by McEwan J:
“
Persons
used as traps may have a motive in giving evidence which may outweigh
their regard for truth.”
A
close monitoring of traps employed by the South African Police
Services has in the past been a requirement to make this type of
evidence acceptable. The issue of traps were that controversial that
the legislature has enacted section 252A of the Criminal
Procedure
Act, now regulating evidence obtained through traps. I need not
quote the contents of section 252A for purposes of this
judgment. It
however appears from the record that Mr Van Schalkwyk’s
submission that the disciplinary hearing and the first
respondent did
not pay heed to the aforesaid precautionary rule in the circumstances
seems to me correct. This issue has nothing
to do with the onus of
prove as suggested by Mr Hulley for the respondents.
[31] What
I regard as important is the fact that where one would have expected
corroboration of Nyoni’s evidence by way of
the video tape it
appears now that there is no such corroboration for some or other
unknown reason, which remained unexplained.
The suggestion that
somebody could have edited the tape and removed specific relevant
parts from it is unsubstantiated. This
explanation by Mr Nyoni is
totally unsatisfactorily and to my mind amounts to pure conjecture.
All that I can find now is that
there appears no such evidential
material on the tapes. Instead of the video tape corroborating the
version of Nyoni in that regard,
to my mind the “lack” of
that evidence does a lot of damage to the case against the applicant.
[32] There
is further no explanation on record why no member of the South
African Police Services was involved or contacted or advised
of the
situation. Nyoni’s actions were uncontrolled which is, to say
the least, a matter of grave concern. To my mind any
tribunal or
court should discourage conduct of this nature and should be very
careful before accepting same as evidence.
[33] The
quality of the evidence of Nyoni therefore concerns me. Nyoni’s
evidence is to my mind a classic example why the
evidence of traps
should be considered with caution. Nyoni could have planned revenge
and could have had a hidden agenda; he had
previous experiences or
encounter with the same police unit which to his mind affected the
rights of “fellow illegal immigrants”.
Nyoni’s
evidence was in any event that of a single witness and a trap. It is
clear that a cautionary approach to his evidence
was called for. See
Hiemstra Suid-Afrikaanse Strafprosesreg 7de uitgawe p679.
[34] These
cautionary rules were not applied during the disciplinary hearing or
by First Respondent. The version of Nyoni and the
version of the
applicant are mutually destructive. When the probabilities are
therefore considered I find that the probabilities
favour the
applicant. See
Koster Koöp Landbou
Maatskappy Beperk v SA Spoorwee en Hawens
1974 (4) SA 420
(WPA).
[35] The
aforesaid principles are usually applied in criminal matters where
the accused’s guilt has to be proved beyond reasonable
doubt.
However to my mind the same principles are applicable on the facts of
this matter.
[36] A
proper consideration of all the circumstances and the facts referred
to above shows that the chairman of the disciplinary
tribunal and the
first respondent on appeal, did not apply their minds to the evidence
adduced against the applicant.
[37
] The
evidence shows that the versions of Mr Nyoni could not pass muster.
On the probabilities the applicant’s exculpatory
version should
have been accepted.
[38
] I
have already pointed to the considerations of facts above. To my
mind the conviction of applicant was irregular.
1. The applicant’s
application for the review of the proceedings before the disciplinary
hearing and the confirmation thereof
on appeal by the first
respondent succeeds.
2. The proceedings are
reviewed and set aside.
3. Respondent
is ordered to pay the applicant’s costs.
AJ
BAM
ACTING JUDGE OF THE HIGH
COURT OF NORTH GAUTENG
FOR
THE APPLICANT:
INSTRUCTED
BY:
FOR
THE RESPONDENTS:
INSTRUCTED
BY:
DATE:
6 OCTOBER 2010