About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2015
>>
[2015] ZAECBHC 13
|
|
Shabih v S (CA&R14/14) [2015] ZAECBHC 13 (21 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
BHISHO
CASE NO: CA&
R 17/14
NOT
REPORTABLE
In the matter between
RIZVI
HAIDER SHABIH
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
HARTLE J
1.
The appellant was granted leave by the
trial court to appeal against his conviction in the Zwelitsha
Magistrate’s Court on
a charge of contravening
section 92
(f)
of the
Basic Conditions of Employment Act, No. 75 of 1997
(“BCEA”).
He had been charged, in tandem, with a contravention of
section 92
(d), but was acquitted on this offence (count 1). Both offences
were alleged to have been committed on 23 October 2012 at
his place
of business, a shop trading as “Joy Hardware and Furniture”.
On count 1 it was alleged that he had
unlawfully and intentionally
“refused to answer the (lawful) questions posed (to him) by a
labour inspector (who was performing
her official functions under the
act), one Lungiswa Roji, and on count 2 - the charge which is the
subject of the appeal, that
he unlawfully and intentionally hindered
or obstructed the said inspector by chasing her out of (his) premises
when she was supposed
to inspect (them) in terms of the act.”
2.
In terms of
section 92
of the BCEA it is an
offence to:
“
(a)
obstruct or attempt to influence improperly a person who is
performing a function in terms of
this Act;
(b)
obtain or attempt to obtain any prescribed document by means of
fraud, false pretences,
or by presenting or submitting a false or
forged document;
(c)
pretend to be a labour inspector or any other person performing a
function in terms of this
Act;
(d)
refuse or fail to answer fully any lawful question put by a labour
inspector or any other
person performing a function in terms of this
Act;
(e)
refuse or fail to comply with any lawful request of, or lawful order
by, a labour inspector
or any other person performing a function in
terms of this Act;
(f)
hinder or obstruct a labour inspector or any other person performing
a function in
terms of this Act.”
3.
The function focused on in the charge sheet
regarding count 2 in respect of which it is alleged the labour
inspector was hindered
or obstructed by the appellant from performing
her functions was a supposed inspection of the premises which, it is
common cause,
entails more than a mere physical inspection of the
premises.
4.
An
inspection is not defined, but it is apparent from Chapter 10 of the
BCEA that one of the manners in which authorised inspectors
are
empowered to promote, monitor and enforce compliance with an
employment law is by “conducting inspections”,
[1]
powers of entry being afforded to them to enter workplaces without
warrant or notice at any reasonable time.
[2]
This machinery inter alia entails inspecting and questioning a person
or interviewing a person as opposed to a mere
physical inspection of
the workplace.
5.
This is confirmed by the provisions of
section 66(1)
of the BCEA, which read as follows:
“
Powers
to question and inspect:
1)
In order to monitor or enforce compliance with an employment law, a
labour inspector may-
(a)
require a person to disclose information, either orally or in
writing, and either alone or in the presence of witnesses, on
any
matter to which an employment law relates, and require that the
disclosure be made under oath or affirmation;
(b)
inspect, and question a person about, any record or document to which
an employment law relates;
(c)
copy any record or document referred to in paragraph (b), or remove
these to make copies or extracts;
(d)
require a person to produce or deliver to a place specified by the
labour inspector any record or document referred to in paragraph
(b)
for inspection;
(e)
inspect, question a person about, and if necessary remove, any
article, substance or machinery present at a place referred to
in
section 65
;
(f)
inspect or question a person about any work performed; and
(g)
perform any other prescribed function necessary for monitoring or
enforcing compliance with an employment law.”
6.
Section 67
is also of relevance because it
qualifies the extent of the co-operation required by the employer and
employees viz a viz the so-called
inspection, in the following manner
and terms:
“
Co-operation
with labour inspectors:
(1)
Any person who is questioned by a labour inspector in terms of
section 66
must answer all relevant questions lawfully put to that
person truthfully and to the best of his or her ability.
(2)
Every employer and each employee must provide any facility and
assistance at a workplace that is reasonably required by a labour
inspector to perform the labour inspector's functions effectively.”
7.
With this background in mind I now relate
the salient features of the evidence presented during the trial.
8.
Before I do so however, it is relevant to
mention that when the plea was put to the appellant and an
explanation was offered on
his behalf for pleading not guilty, the
prosecutor and the appellant’s attorney were evidently both of
the view that the
incident forming the subject matter of both counts
related to one and the same visit and inspection by Ms Roji and her
colleague
to the appellant’s shop, and not to the “subsequent
incident” to which the judgment under appeal refers.
The
defence outlined at the plea stage was to the effect that a scheduled
inspection was underway during which the complainant
in the
appellant’s opinion abused her power as an inspector.
This led to a disagreement between them which made the
continuation
of the inspection untenable. The appellant remained amenable to
a carry-over thereof, but preferably in the
presence of his attorney,
alternatively once he had taken legal advice, and had made this clear
to the complainant.
9.
Ms Roji, a labour inspector, confirmed that
she had attended the appellant’s shop on 23 October 2012
pursuant to a scheduled
appointment in order to conduct the
inspection, which was interrupted when the appellant “chased”
her from the shop.
This was because in her perception he became
tired of her “useless questions”. At this point he
opened his office
door and called on his security officer to escort
her from the premises. She was at the time about to “finish
the last
step”, but what this step was she did not say.
She added however, almost as an afterthought, that because he did not
want to give her the information that she wanted from him and which
flowed from her questioning of him, she decided then and there
–
at that moment it appears and without ostensibly informing him of her
intention, to obtain that information from his employees.
He
refused however and forbade them to “come closer to (her)”.
10.
Asked if she had arranged another time for
the inspection, she clarified that she had not because the appellant
was very angry.
From there she claims she went to the police
station to elicit their help to go there again. She returned to
his workplace
accompanied by police officers who she said explained
the purpose of their visit there, being to accompany her to “do
(her)
duties”, namely to talk to the employees. But the
appellant chased them both away, claiming that the police officers
were siding with them.
11.
Although she had suggested in her evidence
in chief that the appellant was bored and tired or vexed by her
questions, she conceded
under cross examination that they had in
actual fact had a disagreement over the designations of his employees
which she had wanted
him to change.
12.
As far as she was concerned, if an employer
does not comply with the checklist to which she refers to verify that
he is compliant
with the employment laws, then he is (in her opinion)
automatically in breach of the Act. She actually went further
and suggested
that an employer was not entitled to have a view of his
own which differed from the checklist. In any event she agreed
that
the appellant’s failure to co-operate should ideally have
been met with the issue of an undertaking in terms of
section 68
of
the BCEA, and later with a compliance order issued under
section 69
,
a process which she conceded under examination by the court was one
of mediation and co-operation. In this instance charges
were
laid against the appellant some five months after the incident,
however, without any of these steps having been taken before
resorting to the most austere form of enforcement, namely criminal
prosecution.
13.
Mr Dakeni, an occupational health and
safety inspector was present at the appellant’s workplace when
Ms Roji and the appellant
had the disagreement. He was there to
inspect the building and indeed did, with the assistance of one of
the appellant’s
employees placed at his disposal. This
took him all of five minutes.
14.
He overheard the appellant say to his
colleague that she was asking him “useless questions”.
He also witnessed
him asking her to leave and calling a security
officer to “chase her out”. He claims that he
himself tried to
ask the appellant what was happening, but that he
was “fighting”. From there they went to the police
station
- according to him to ask for the assistance of the police to
complete the inspection. On their return with the police, the
appellant however refused and all of them were chased away from his
workplace.
15.
Under cross examination he confirmed that
Ms Roji had not been physically pushed off the premises but merely
ushered out.
He himself was not chased. Seemingly at most
they were sternly requested to leave. As far as he was
concerned he too
was not finished with his investigation. He
was required still to give the appellant his findings. In his
view the
appellant had in fact committed a separate offence by
hindering or obstructing him in the performance of his functions as
well
although (so he conceded) he had not been charged in this
regard.
16.
He explained that he and Ms Roji laid the
complaint on the same day as the incident, but that the formalisation
of the charge was
delayed because the police failed to understand
what the nature of their complaint against the appellant was.
He was reluctant
to concede the appellant’s defence that there
was an argument between him and Ms Roji which justified him in asking
her to
leave. Seemingly on the basis of speculation (because he
was not present at their meeting), he purported to know that after
Ms
Roji was finished talking to the appellant, she intended to interview
his employees ostensibly so as to be in a position to
make a report
to the appellant.
17.
Finally, the state called Ms Olwethu
Ndedwa, one of the police officers stationed at Zwelitsha who called
on the appellant’s
business on the day in question with Ms Roji
and her colleague. The report made to the police by the two
inspectors was to
the effect that they had visited there earlier but
had encountered a problem as a result of a misunderstanding between
Ms Roji
and the appellant. She was “about to be
interviewing the employees within the shop” when the appellant
chased
them out. It was for this reason that they asked for the
assistance of the police.
18.
She testified that when Ms Roji, in her
presence now, proceeded to engage with one of the appellant’s
employees, the appellant
shouted at them and accused the police of
taking sides with the inspector. She agreed ultimately that he
had also expressed
the desire to call his lawyer. Since they
were told to leave they were unable to accomplish anything. She
rejected
the notion that the police had accompanied the inspectors
only in order to intimidate the appellant.
19.
The appellant in his testimony conceded
that the visit from the labour inspectors had been scheduled and that
he had initially co-operated
fully with Ms Roji in answering her
questions, which she ticked off on a list. Her colleague was at
the same time conducting
a physical inspection of the shop with one
of his employees in tow. He and Ms Roji came to blows over a
question concerning
the designation of an employee working behind the
counter as a “general assistant” rather than as a
“cashier”.
He informed her that he had taken legal
advice with regard to the relevant matter which she was evidently not
prepared to accept.
She slammed her fists on the table and
demanded that he change it. At this point he indicated his
preference to have his
attorney present if she wished to pursue the
matter any further but she would not agree. She wanted it to
happen right away.
He disagreed and called the meeting to an
end. She gathered her belongings and as she was leaving his
office insulted him
by saying that “you people” don’t
want to follow the law and are “crooks”. He took
her to task
regarding this and both their voices were raised.
Her colleague arrived and asked in disbelief what had now happened,
but
soon turned to favouring Ms Roji who together with him insulted
him even further by accusing him of not paying his taxes.
He
did ask his security officer to assist in putting them both out, but
no one was touched in the process.
20.
They came back later with the police who in
his view were taking sides with the labour inspectors, insisting on
establishing the
reason why he would not let them come to do what
they had come for. He claims that he explained to the lady
police officer
exactly what his position on the matter was, but she
asked four times why he would not co-operate with Ms Roji. At
the time
Ms Roji was trying to interview one of his employees who he
instructed to go and do her job as there were customers to be
attended
to. He insisted on a new appointment with his attorney
present and asked them to come back another time when it was
convenient
to him, whereupon they left. He denied chasing
them. In fact he did not even use the words “get out of
here”.
He was not averse to his employees being
interviewed. This was par for the course at his other branches
as well, but on that
specific day he had requested a new appointment
so that his attorney could be present.
21.
Regarding count 1, in his judgment the
magistrate, correctly in my view, accepted the appellant’s
version of events that the
meeting between him and Ms Roji had
culminated in “an antagonistic breakdown” and that the
appellant had indicated
to her that he wanted to consult his
attorney, which is why he did not want to continue with the
interview. He concluded
that it was perhaps unfair to expect
the appellant to continue with the meeting in the circumstances and
gave him the benefit of
the doubt, especially since he found there to
be “some problems with (Ms Roji’s) evidence”.
22.
But despite having accepted the appellant’s
version of the events and in particular that he was justified in
calling off the
meeting, the magistrate evidently focused his
attention in respect of count 2 on what he regarded as the
“subsequent incident”,
in other words what happened after
the meeting between the appellant and Ms Roji when she returned to
his workplace together with
the police. In this regard he held
it be common cause that they (the inspectors) had wanted to interview
one of his employees
when they returned with the police in tow and
that he had stopped his employee from doing so because he said she
had other duties
to go and perform. This in his view had
nothing to do with the legal issues arising between the appellant and
Ms Roji in
the prior meeting. It was a separate interview in
respect of which the appellant could not insist on the right to legal
representation.
This therefore constituted an unreasonable
refusal which he found was tantamount to a hindering of the inspector
in the performance
of her functions.
23.
He appeared to accept as a reasonable
probability that the particular employee was co-incidentally
dispatched to till at the time
“in the best interests” of
the appellant’s business to attend to a customer, yet concluded
incongruously
that:
“
...
in view of what happened, the fact that she (Ms Roji) had aggravated
you according to what you said, the fact that they (the
inspectors)
came back again with the police, all of this aggravated you and you
were just feeling a bit stubborn probably, and
therefore you told
this employee man, go back to your work, you are not going to speak
to this person. This would, as far
as I am concerned,
constitute a contravention of
Section 92(f)
, hindering the labour
inspector, in conducting her duties.”
24.
One of the grounds raised upon appeal is
that there was a breach of the appellant’s fair trial rights in
that he had not been
informed with a reasonable degree of clarity
what case he had to meet and which resulted unfairly in the
magistrate convicting
him of an “offence” in respect of
which he had not been charged. The details contained in the
charge sheet and
on which the appellant’s plea was founded
reflect that the appellant was charged on the factual basis that he
had hindered
or obstructed the labour inspector “by chasing her
out of the premises when she was supposed to inspect (them) in terms
of
the Act”. Instead, the court found that the evidence
revealed that the appellant, upon return of the labour inspector
together with members of the police force to his workplace, had
hindered or obstructed the labour inspector (Ms Roji) “by
preventing an employee from being interviewed by (her)”.
It was submitted that these factual bases were entirely different.
25.
There appears to be considerable merit in
this submission and even Ms Monis for the state conceded, correctly
in my view, that this
was a classic case of the prosecutor and the
attorney being at cross purposes with one another concerning the
nature of the charge
which was the subject of the prosecution on
count 2, more particularly when and what formed the basis of the
hindrance or obstruction.
This confusion is evident from the
fact that the prosecutor hardly touched upon the “subsequent
incident” when leading
the testimony of Ms Roji, except to fill
the background or complete the picture as it were. The
appellant’s legal representative
also did not focus on the
“subsequent incident” in his cross examination of the
state witnesses or in leading the appellant
when he testified in
chief. In fact the appellant appeared quite co-incidentally and
in passing to have related the vignette
of Ms Roji trying to
interview one of his employees while he was trying to persuade the
police woman that he was not in breach
of the law. Further the
tenor and focus of the closing submissions made on behalf of the
appellant concerned only the initial
visit by the labour inspectors.
The prosecutor submitted that “even on (the) second occasion
(the) labour inspectors
were unable to do their inspection”,
but it appears that the thrust of this argument was directed at
persuading the trial
court that the appellant’s later conduct
even was corroborative of his earlier purported hindrance and
obstruction of the
labour inspectors.
26.
In
the charge sheet the accused is informed of the case that the state
intends to prove against him and it is only fair to expect
that the
charge should, in no uncertain terms, let the accused know what to
expect.
[3]
In other words
he must be informed about what calls for a response in advance.
27.
Ms Monis submitted in argument that the
allegation “chasing her out of the premises when she was
supposed to inspect the premises
in terms of the Act” implies
that the appellant by chasing the labour inspector out prevented her
from conducting her inspection,
which included interviewing employees
of the appellant, albeit after the fact. Although semantically
it is possible that
the hindrance or obstruction involving the
interviewing of witnesses can comfortably resort under the wider
allegation that the
labour inspector was chased away and as a result
could not interview anyone, this argument loses sight of the fact
that the court’s
judgment was based on evidence that was at
variance with what the state’s case rested on in the charge. As
framed the charge
in count 2 outlined conduct that happened and
events which unfolded on the occasion of the first visit by Ms Roji
and her colleague
which culminated in the chasing away on the state’s
version. What happened after the inspectors were chased away is
therefore in effect irrelevant.
28.
In my view the kind of charge facing the
appellant requires clear particularity with regard to time and place
as well as the legal
and factual basis on which it is alleged that
the appellant’s conduct was tantamount to a hindrance or
obstruction of the
labour inspectors performing a function in terms
of the BCEA. This must be especially so where an inspection
constituting
the basis of the function under threat by an accused’s
conduct has a dual meaning in terms of the Act. Even the
magistrate
was confused at first as to what the inspection was which
was under contemplation. This is demonstrated by his comment,
after
an application was made by the appellant for his discharge at
the close of the state’s case, to the following effect:
“
Count
2 is not really of any consequence as there was no evidence that
there was a physical inspection to be done by the complainant.”
29.
Section 84 of the Criminal Procedure Act
provides that:
“
Essentials
of charge
(1) Subject to the
provisions of this Act and of any other law relating to any
particular offence, a charge shall set forth the
relevant offence in
such manner and with such particulars as to the time and place at
which the offence is alleged to have been
committed and the person,
if any, against whom and the property, if any, in respect of which
the offence is alleged to have been
committed, as may be reasonably
sufficient to inform the accused of the nature of the charge.
(2) Where any of the
particulars referred to in subsection (1) are unknown to the
prosecutor it shall be sufficient to state that
fact in the charge.
(3) In criminal
proceedings the description of any statutory offence in the words of
the law creating the offence, or in similar
words, shall be
sufficient.”
30.
Furthermore, section 35(3)(a) of the
Constitution guarantees an accused person’s right to be
informed of the charge against
him with sufficient detail to answer
it.
31.
Importantly,
the purpose of section 84 is to enable an accused person to consider
whether the charge should be contested and what
evidence to tender to
challenge the averments contained in the charge sheet. Without
sufficient information about the legal
and factual basis an accused
is at a disadvantage to defend himself against the charge preferred
against him.
[4]
32.
With
reference to the decision of S v Langa
[5]
the court in S v Essop
[6]
held
that “the principle (of) a fair trial demands that an accused
has the requisite knowledge
in
sufficient time to make critical decisions which will bear on the
outcome of the case as a whole
.
It is for this very reason that a charge-sheet ought to inform an
accused with sufficient detail of the charge he or she
should face.
It should set forth the relevant elements of the crime that has been
committed and the manner in which the offence
was committed.”
(Emphasis added)
33.
S
v Wannenberg
[7]
is a clear
example of a situation where the charge sheet was at odds with the
evidence and violated the appellant’s fair
trial rights.
In this regard the court noted that
“
...
it is impermissible ... in circumstances such as these, to charge an
accused with Crime A and upon failure to prove same, to
convict him
of being an accomplice to Crime B. In terms of section 35(3) of
our Constitution an accused is entitled to a
fair trial and, in
particular, to be informed of the charge with sufficient detail to
answer it (s 35(3)(a)). In this connection
I agree with Claasen
J in S v Lavhengwa that the right to be informed of the charge as
guaranteed in s 35(3)(a) of the Constitution
of the Republic of South
Africa, 1996 encompasses the requirements that the accused must know
the necessary particulars of the
charge and that the charges must be
clear and unambiguous.”
[8]
34.
See
also in this regard S v Maphinda
[9]
in which the court on appeal held that the accused had been convicted
by the trial court of an offence altogether different from
the one
with which he had been charged, also on the basis essentially of
admissions made by him. The court noted that it
was necessary
to look behind the letter of the charge (which in that case was
dealing in dagga). The state in that instance
could not
conceivably have intended to charge the accused with having dealt in
the second batch of dagga which he in “an
outburst of candour”
had assumed responsibility for. The state could not have known
of its existence until he mentioned
it.
35.
Despite
the fact that the proven facts which emerged from the evidence on the
accused’s own version were in conflict with
the charge in S v
Motale,
[10]
he was convicted
by the trial court. His version differed materially from that
with which he had been charged, there being
a difference in the facts
regarding time, place and method. On appeal it was held that
section 84 of the Criminal Procedure
Act required that particulars
regarding the offence, the time, the place, the person against whom
it was committed and the property,
if any, had to be set out in the
charge. In that instance the accused’s version formed the
basis for a different charge.
The conviction was accordingly
held to be unfounded and set aside.
36.
These examples quoted above are not
dissimilar from the situation which presents itself in this matter.
37.
It
is true that the state did not seek to amend the charge sheet to
include the particulars on which the magistrate in this instance
relied for his conviction, but as I have indicated above I sincerely
doubt that the prosecutor was even focused on “the subsequent
incident” (at least at first) except as a titillating feature
of the case and to demonstrate how firm the appellant was that
the
disagreement between him and Ms Roji was insuperable. It is
further doubtful however that if an amendment had been sought
it
would not in effect have amounted to a substitution of the charge
rather than an amendment, which would have been prejudicial
to the
appellant given the basis upon which he conducted his defence in the
trial court. Alternatively it would have been tantamount
to the
joinder of another separate charge, which cannot be allowed after
evidence has been adduced.
[11]
38.
In my view the conviction of the accused
under the circumstances and essentially on the basis of his evidence
which formed the foundation
for a different charge constitutes an
infringement of the appellant’s fair trial rights in that he
was not informed with
reasonable clarity what case he had to meet or,
contrariwise, ended up being convicted on a premise that clearly did
not constitute
the legal and factual basis outlined in the charge
sheet, or to which he pleaded and along which lines he conducted his
defence.
39.
There was no obligation in my view on the
appellant to seek clarity, or to insist on particulars because as far
as he (and his attorney)
was concerned, the allegations related
unequivocally to the first visit by the labour inspectors to his
workplace, concerning which
visit the trial court was inclined to
accept his version that he was justified in terminating the interview
and requesting Ms Roji
to come back on another occasion. The
fact that the appellant’s attention in the conduct of his
defence was focused
on the particular conduct which evinced the
supposed hindrance or obstruction arising from the first visit and
only inspection
in my view demonstrates the obvious prejudice to him.
40.
For this reason the conviction on count 2
stands to be vitiated.
41.
Even accepting for a moment that the
supposed hindrance and obstruction of the appellant on the occasion
of the “subsequent
incident” constituted an ongoing
offence (that is a carry over from the initial inspection) as the
basis for the charge against
him on count 2, the magistrate erred in
my view too in rejecting the appellant’s evidence that if the
labour inspector had
requested to speak to other employees, he would
have permitted her to do so. This must be the case especially
where he noted
that the evidence of Ms Roji, who was a single
witness, was not satisfactory in all material respects.
42.
In the result I issue the following order:
1.
The appeal is upheld.
2.
The conviction and sentence in respect of
count 2 are set aside.
B HARTLE
JUDGE OF THE HIGH
COURT
I AGREE
C DIFFORD
ACTING JUDGE OF THE
HIGH COURT
DATE OF APPEAL:
27 March 2015
DATE
OF JUDGMENT: 21 April 2015
Appearances:
For
the appellant:
Mr
J R Koekemoer,
Instructed
by
Gordon
McCune Attorney of King Williams Town.
For
the respondent:
Ms
C Monis,
Director
of Public Prosecutions, Bhisho.
[1]
Section 64(1)(b) of the Act.
[2]
Section 65.
[3]
Du
Toit, Commentary on Criminal Procedure Act at 14 – 14.
Note the cases cited with regard thereto.
[4]
S v Essop
2014 (2) SACR 495
(KZP) at par [39]
[5]
2010 (2) SACR 289
(KZP) at 304 e – f.
[6]
Supra, at par [42].
[7]
2007 (1) SACR 27 (C).
[8]
At pages 33 j – p and 34 a.
[9]
1979
(2) SA 343
(N).
[10]
1997
(1) SA 245 (T).
[11]
S v Hendricks
1995 (2) SACR 177
(A) at 186
d
– 187
h
;
S v Thipe
1988 (3) SA 346
(T); S v Ncoko
2014 (1) SACR 607
(ECG); S
v Mhlambiso and Another
2014 (1) SACR 610
(ECG).