About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 62
|
|
South African Police Service v POPCRU obo Mmatli and Others (JA39/2019) [2020] ZALAC 62; (2021) 42 ILJ 358 (LAC) (13 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 39/2019
In
the matter between:
SOUTH
AFRICAN POLICE
SERVICE Appellant
and
POPCRU
obo KD
MMATLI First
Respondent
BARGAINING
COUNCIL Second
Respondent
MULIMA
DENGA
N.O Third
Respondent
Heard:
27
August 2020
Delivered:
13
November 2020
Summary:
SA
Police Service --- Regulation 20(z) of SAPS Disciplinary Regulations
2006---Dismissal for misconduct---Employee guilty of misconduct
if he
inter alia commits common-law or statutory offence--- Irrelevant that
member acquitted in the criminal trial---Sufficient
under the SAPS
Discipline Regulations, 2006 that SAPS prove on a balance of
probabilities that member committed act.
Coram:
Coppin
JA, Murphy AJA and Kathree Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1] This
is an appeal against the judgment and order of the Labour Court
(Lallie J) which dismissed the review
application against the
arbitration award of the third respondent (“arbitrator”)
made under the auspices of the second
respondent, the Safety and
Security Sectoral Bargaining Council (“Bargaining Council”),
in which he found that the
first respondent’s (“Const.
Mmatli”) dismissal was substantively unfair.
Background
[2] Constable
Mmatli was employed by the appellant, the South African Police
Service (“SAPS”) as a
constable stationed at the
Johannesburg Public Order Police Unit in Diepkloof. Const. Mmatli
killed and shot Mr Simpiwe Sitele
(“the deceased”) on 1
April 2013 at his home in Dobsonville. The SAPS brought the following
charges against him:
‘
Charge 1:
Murder
You allegedly contravened
Regulation 20(z) of the South African Police Services Discipline
Regulations 2006, in that at or near
Dobsonville during 2013/04/01
you committed a common law offence namely murder in that you
unlawfully and intentionally killed
a human being Mr Simphiwe Sitele
by shooting him with your service pistol in the head.
Charge 2:
Endangering
the lives of others
You allegedly contravened
Regulation 20(e) of the South African Police Services Discipline
Regulations, 2006, at or near Dobsonville
during 2013/04/01 in that
you endangered the lives of others by disregarding circulars or
Regulations when you fired your service
pistol towards a human being
and it resulted in the killing of Mr Siphiwe Sitele.
Charge 3:
Firing a
service pistol
You allegedly contravened
Reg 20(q) of the South African Police Service Discipline Regulations
2006, at or near Dobsonville during
2013/04/01 in that you
contravened the said Code of Conduct of the SAPS by firing a service
pistol towards a human being and resulting
in the killing of Mr
Siphiwe Sitele.
[3] Const.
Mmatli was found guilty of charges 1 and 3 at a disciplinary hearing
and subsequently dismissed. He
referred an unfair dismissal dispute
to the Bargaining Council. Conciliation was unsuccessful and the
dispute was referred to arbitration.
[4] Warrant
Officer Miya testified on behalf of SAPS at the arbitration hearing.
He testified that on 1 April 2013,
he was assigned to the scene of a
shooting in Dobsonville, between 09h30 and 10h00, which turned out to
be Const. Mmatli’s
house. He interviewed Const. Mmatli and
conducted an inspection of the scene.
[5] Warrant
Officer Miya said that Const. Mmatli informed him, during the
interview, that he was in his bathroom
preparing for work between
03h00 and 04h00 when he saw the figure of an unknown man (who, it
later turned out, was the deceased)
walking pass his bathroom window.
Const. Mmatli shouted at the deceased and went outside to investigate
but the deceased had fled
his yard. He then went back into his house.
On his way out again, he noticed the deceased peering over the
boundary wall into his
yard. Const. Mmatli suspected that the
deceased was a threat to his life, and he shot and killed him with
his service firearm.
He fired a single shot. The bullet struck the
deceased in the forehead, killing him instantly.
[6] On
investigation, Warrant Officer Miya found a single empty cartridge
inside Const. Mmatli’s house and
a metal rod, measuring more
than a metre, in his yard. His investigation also revealed that the
deceased had sustained a bullet
wound to his forehead. Close to the
deceased body was a plastic bag with women's cosmetics, toothpaste
and petroleum jelly. Elsewhere
on the premises, he found a pair of
sports shoes, and an odd one. The partner to the odd shoe was found
outside Const. Mmatli’s
yard.
[7] Warrant
Officer Miya expressed his opinion on many issues during his
testimony, including that the deceased
could have intended to use the
metal rod to assault Const. Mmatli and that his life was in danger
“because he was ready to
go to work. By the time he turned, may
be the deceased would have jumped the wall and hit him”.
Warrant Officer Miya also
expressed the view that the area, where the
incident took place, was a “very dangerous place”.
[8] Sergeant
Nyalungu also gave evidence for the SAPS. He was requested to go to
the crime scene to collect forensic
evidence and take photographs. He
described a photograph he had taken at the crime scene, as depicting
an indentation in the soil,
which would have been created by the
metal rod that fell from the deceased’s hands when he was shot.
He testified that the
deceased's head and shoulders were visible
above the boundary wall, which he measured to be 70cm high. Since the
deceased height
was 68cm, he had to climb the wall to look over it
into Const. Mmatli’s yard. He found scratches on the deceased’s
body which, in his opinion, he would have sustained when he fell off
the wall after being shot. He said that on examining the firearm
which Const. Mmatli used to shoot and kill the deceased, he observed
that it took 15 rounds but only 14 rounds were still in it;
as one
round had been used.
The
Arbitration Award
[9] The
arbitrator found, on the basis of the testimony given by Warrant
Officer Miya and Sergeant Nyalungu, that
Const. Mmatli’s “life
and that of his family were threatened and in danger”, hence he
was justified in shooting
the deceased. In reaching that conclusion,
he reasoned that the testimony given by Warrant Officer Miya and
Sergeant Nyalunga,
for SAPS, did not prove that Const. Mmatli
transgressed any rule or was guilty of any act of misconduct that
justified his dismissal.
[10] The
arbitrator accordingly found that Const. Mmati’s dismissal was
substantively unfair and ordered
that he be reinstated.
In
the Labour Court
[11]
The
Labour Court noted that the test for review as set out in
Herholdt
[1]
,
viz. whether the arbitrator reached a decision which a reasonable
decision-maker could reach on the evidence before the arbitrator.
To
succeed, it had to be shown that the arbitrator “either
misconstrued the inquiry he had to conduct in that he conducted
the
incorrect enquiry or conducted the correct inquiry incorrectly”.
[2]
[12] Applying
these principles to the facts of the case, the Labour Court held that
the arbitrator had not misconstrued
the inquiry or conducted the
inquiry incorrectly. In arriving at this conclusion, it reasoned as
follows:
‘
The manner in
which the arbitrator stated the dispute before him does not support
the [SAPS’] version that he misconstrued
the enquiry he had to
conduct. He stated in clear terms that he had to determine the
fairness of [Const. Mmatli’s] dismissal
for misconduct. The
[SAPS] further failed to establish that the arbitrator conducted the
inquiry incorrectly because, as the award
reflects, he dealt with the
issue before him. He considered the evidence that was led. He
considered provisions of section 192(2)
of the LRA which required the
[SAPS] to prove the fairness of the [Const. Mmatli’] dismissal.
He based his decision on the
fact that the [SAPS] had failed to
discharge the onus on the evidence before him. The arbitrator’s
decision that the [SAPS’]
witnesses led evidence which proved
that [Const. Mmatli] did not commit the acts of misconduct which led
to his dismissal is supported
by the record. The arbitrator cannot be
faulted for reaching the conclusion as it is based on evidence led on
behalf of the [SAPS].
[Const. Mmatli] correctly argued that his
failure to testify did not render the award reviewable. The [SAPS]
failed to lead evidence
implicating him in any misconduct. The need
for [Const. Mmatli] to rebut the [SAPS’] version did not arise…
.’
[3]
[13]
The
Labour Court, accordingly, held that the arbitration award fell
“within the bounds of reasonableness” and there
was,
therefore, “no legal basis to have it reviewed and set
aside”.
[4]
It,
consequently, dismissed the review application.
[14] The
appeal lies against the dismissal of the review application with
leave of this Court.
The
Appeal
[15] It
was not in dispute, at the arbitration hearing, that Const. Mmatli
shot and killed the deceased with his
service firearm in the
forehead. Indeed, his legal representative admitted as much during
the hearing when he said, “the
shooting is not in dispute but
was [Const. Mmatli] warranted to shoot at that particular time…was
the shooting justifiable?”.
[16]
The
common cause facts support the inference that Const. Mmati unlawfully
and intentionally killed the deceased in contravention
of regulation
20(z) of the South African Police Service Discipline Regulations,
2006
[5]
(“Regulations”)
which provides that an employee will be guilty of misconduct if he or
she commits a common law or statutory
offence. Thus, on the common
cause facts alone, the SAPS was entitled to dismiss Const. Mmatli for
misconduct as a result of murdering
the deceased.
[17] However,
to avoid that consequence, Const. Mmatli raised the defence of
justification. He contended that because
of special circumstances, he
was justified in killing the deceased. Consequently, in order for
Const. Mmatli to succeed on this
defence, the arbitrator had to be
satisfied on a balance of probabilities that he was justified in
murdering the deceased.
[18]
Since
the basis for his defence of justification remained peculiarly within
his knowledge, Const. Mmatli bore an evidentiary burden
to support
it.
[6]
In other words, he was
required to lead evidence to rebut the case of the SAPS that he
murdered the deceased in contravention of
regulation 20(z) of the
Regulations.
[19]
To
the contrary, however, both the arbitrator and the Labour Court
adopted the view that the SAPS bore the onus to prove that the
employee was not justified in shooting and killing the deceased. They
based their view on an incorrect understanding of the provisions
of
section 192 of the LRA.
[7]
Section 192(2) of the LRA does not place any onus on the employer to
disprove a defence of justification. It merely places an onus
on an
employer to prove that a dismissal was substantively and procedurally
fair. Insofar as the substantive aspect of a dismissal
is concerned,
this means simply that the employer must have dismissed an employee
for a reason that is fair. It does not mean,
as contended for on
behalf of Const. Mmatli, that the SAPS bears the onus to disprove his
defence of justification. Const. Mmatli
bore the evidentiary burden
to lead evidence in support of the defence of justification. In the
absence of such evidence, there
was no onus on the SAPS to disprove
his defence.
[20] The
arbitrator found that the two witnesses, who testified on behalf of
the SAPS, adduced evidence that proved
justification. He was wrong in
drawing this conclusion for several reasons. The first being that he
misconceived the nature of
the testimony of Warrant Officer Miya and
Sergeant Nyalungu. Principally in this respect, he accepted Warrant
Officer Miya’s
testimony of what Const. Mmatli had told him as
primary evidence of Const. Mmatli’s version. However, neither
Warrant Officer
Miya nor Sergeant Nyalungu was present at the scene
of the incident when Const. Mmatli shot and killed the deceased. They
could
only give testimony on what they observed at the scene of the
crime and what Const. Mmatli informed them had transpired. However,
what he said to them remained hearsay evidence until confirmed by
Const. Mmatli under oath. Needless to say, Const. Mmatli elected
not
to testify at the arbitration hearing.
[21]
In
any event, on the version given by Warrant Officer Miya in his
testimony, virtually none of the elements of private defence were
present. For that defence to succeed, the arbitrator had to be
satisfied, on a balance of probabilities, that Const. Mmatli had
been
the subject of an unlawful attack by the deceased, which had either
commenced or was imminent, and that the means used by
him to avert
the attack was reasonable and commensurate with the nature and extent
of the threat.
[8]
None of these
elements was present on the version provided by Const. Mmatli to
Warrant Officer Miya.
[22] This
notwithstanding, the arbitrator concluded that Warrant Officer Miya’s
evidence proved that Const.
Mmatli was justified in shooting and
killing the deceased. Not only did he reach this conclusion without
examining the legal principles
applicable to such a defence, but he
did so on hearsay evidence which was inadmissible. Had he applied the
correct test, he would
have found that a reasonable person in the
position of Const. Mmatli would not have shot and killed the
deceased. There was accordingly
no evidence before him that supported
the finding that Const. Mmatli’s life or that of his family was
in danger and that
he was justified in shooting and killing the
deceased.
[23] That
Const. Mmatli was acquitted of the charge of murdering the deceased
in the criminal trial, is irrelevant
to the question of whether
Const. Mmatli is guilty of misconduct under the Regulations. It was
sufficient, under the Regulations,
for the SAPS to show on a balance
of probabilities that Const. Mmatli had committed the common law
crime of murder. This was established
on the common cause facts alone
[24]
The
shooting and killing of a civilian without just cause constitute
misconduct of a very serious nature. It is not consistent with
the
obligations of a police officer who is required, in terms of the SAPS
Code of Conduct,
[9]
to, amongst
other things, exercise the powers conferred upon him or her in a
responsible and controlled manner and uphold and protect
the
fundamental rights of every person. Such misconduct detrimentally
affects the image of the police and brings it into disrepute,
thus
undermining public confidence in the police service. The SAPS was,
therefore, justified in dismissing Const. Mmatli from the
service.
[25] That
being the case, the Labour Court should have found that the
arbitrator’s decision was one which
no reasonable arbitrator
could have arrived at. The Labour Court, accordingly, erred in
concluding that the arbitration award fell
within the bounds of
reasonableness and there was “no legal basis to have it
reviewed and set aside”.
[26] For
these reasons, the appeal must succeed.
Costs
[26] I
consider this to be a matter where it would be fair and just not to
make a costs order against Const. Mmatli
in both the review
application as well as the appeal.
Order
[27] In
the result, I make the following order:
1. The
appeal is upheld with no order as to costs.
2. The
order of the Labour Court is set aside and substituted with the
following order:
‘
(a) Paragraph
2 of the award of the third respondent is set aside and substituted
as follows:
“
2. The
dismissal of Constable KD Mmatli was substantively and procedurally
fair.”
(b) There
is no order as to costs.’
F
Kathree-Setiloane AJA
P
Coppin JA and Murphy AJA concur
APPEARANCES
FOR
THE APPELLANT: Mr G I Hulley SC
Instructed
by The State Attorney, Johannesburg
FOR
THE FIRST AND SECOND RESPONDENTS: Ngada Attorneys
Instructed
by Ngada Attorneys
[1]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
2013
(6) SA 224 (SCA).
[2]
Labour
Court Judgment
para
8.
[3]
Labour
Court Judgment
at
par 9.
[4]
Labour
Court Judgment
at
par 9.
[5]
GG 27983, GN R864, 31 August 2005.
[6]
Mabaso
v Felix
1981
(3) SA 865 (A).
[7]
Section 192 of the LRA provides:
‘
(1) In any
proceedings concerning any dismissal, the employee must establish
the existence of the dismissal.
(2) If the existence of
the dismissal is established, the employer must prove that the
dismissal is fair.’
[8]
Jonathan Burchell, Principles of Criminal Law, 5th Edition, p122.
[9]
Regulation for the South African Police Service Relating to the Code
of Conduct for Members of the Service, GN 529, GG 27642
of 10 June
2005.