Brief Summary

Labour Law — Unfair Dismissal — Review of arbitration award — Minister of Police dismissed two policemen for bribery and corruption following an undercover operation — Arbitrator found dismissal substantively unfair due to alleged illegality of the operation — Labour Court upheld the arbitrator's decision — On appeal, it was determined that the operation was properly authorised and evidence of misconduct was admissible — Holding that the arbitrator's finding was unsustainable and the dismissal was fair, thus overturning the Labour Court's ruling.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal to the Labour Appeal Court against a judgment of the Labour Court which had dismissed a review application and thereby left standing an arbitration award that found the dismissal of two police officers to be substantively unfair and ordered their retrospective reinstatement.

The appellant was the Minister of Police, cited in that capacity in relation to the South African Police Service (SAPS). The first respondent was the Safety and Security Sectorial Bargaining Council (SSSBC). The second respondent was the arbitrator (cited n.o.). The third and fourth respondents were Mr Jabulani Isaac Mzilikazi and Mr Nceba Templeton Boyce, both SAPS members who had been dismissed.

The procedural history was that, following their dismissals for bribery and corruption, the employees referred an unfair dismissal dispute to the SSSBC. The arbitrator issued an award finding the dismissals substantively unfair on the basis that the underlying undercover “trap” operation was unlawful, and ordered retrospective reinstatement. The Minister sought to review and set aside the award in the Labour Court, but the Labour Court dismissed the review and ordered costs against the Minister. Leave to appeal was granted, and the matter proceeded to the Labour Appeal Court.

The general subject-matter of the dispute was whether, on the evidence led at arbitration (including evidence generated by an undercover operation), SAPS had proven misconduct involving bribery and corruption, and whether the arbitrator’s approach to admissibility and legality of the “trap” produced an award that could not be sustained on review under the applicable standard of reasonableness.

2. Material Facts

Two SAPS members (the third and fourth respondents) were dismissed on 11 December 2013 for bribery and corruption. The dismissals arose from an allegation by a member of the public, Mr Tefayo Wiwi, that two Mqanduli police station members had demanded a bribe of R15 000 to prevent a criminal investigation into whether he was driving a stolen vehicle.

Following the complaint, SAPS Crime Intelligence sought authorisation to conduct an undercover operation at the Mqanduli police station. The record before the arbitrator included documentation showing that SAPS requested authorisation under a specified reference number, and that the Director of Public Prosecutions, Mthatha authorised the operation in writing, under the same reference number, prior to the operation date.

On 18 August 2012, the undercover operation was executed at the police station. Mr Wiwi was provided with R5 000 in banknotes identifiable by serial numbers, and he wore a concealed recording device. He met the respondents and handed the money to the third respondent, who counted it in the presence of the fourth respondent. SAPS members then entered the room, whereupon the fourth respondent was observed throwing his wallet out of a window and the third respondent was observed discarding money. Banknotes recovered from the scene were verified as those issued to Mr Wiwi immediately before the operation.

At arbitration, SAPS witnesses testified regarding the execution of the operation, the recovery of the marked money, and the conduct observed when SAPS members entered the room. Video footage recorded by the concealed device was shown and was not disputed. A transcript of recorded discussion reflected Mr Wiwi referring to prior arrangements (including that he had “tried collecting so much” and had asked an “elderly woman” to assist with money “which we discussed”). Mr Wiwi did not testify because he was deceased by the time of arbitration.

The respondents’ version at arbitration was that Mr Wiwi was unknown to them, that he asked the third respondent to count money for him, that the money was then returned to him, and that they were victims of a conspiracy intended to falsely implicate them. The judgment recorded that this version was not put to any of SAPS’s witnesses during cross-examination.

The critical disputed factual matter at the arbitration stage was whether the interaction and payment were indicative of a bribe (SAPS’s version) or an innocent request to count money coupled with an alleged conspiracy (the respondents’ version). In addition, the arbitrator treated the legality and authorisation of the trap operation as decisive to admissibility of the evidence derived from it.

3. Legal Issues

The appeal required determination of whether the arbitration award (as upheld by the Labour Court on review) was sustainable under the applicable review standard, given the arbitrator’s treatment of the undercover operation as unlawful and the consequent disregard of the evidence emanating from it.

The central legal questions were whether the arbitrator had misconceived the inquiry by focusing on section 252A of the Criminal Procedure Act 51 of 1977 (governing traps in criminal procedure) rather than the arbitration framework (including section 138 of the Labour Relations Act 66 of 1995), and whether the arbitrator’s conclusion that the operation was unauthorised and illegal was borne out by the material before him.

Closely connected to these were questions involving the application of law to fact and the evaluation of evidence: whether, once the evidence was properly considered, the misconduct was proven on a balance of probabilities, and whether dismissal was an appropriate sanction in the circumstances.

4. Court’s Reasoning

The Labour Appeal Court considered that the arbitrator’s pivotal finding—namely that the trap was illegal because of a discrepancy in authorisation reference numbers—was not supported by the material placed before the arbitrator. On the documentary evidence, the same reference numbers were used in requesting and authorising the operation, and the authorisation was signed before the operation date. The Court therefore treated the undercover operation as having been properly authorised and lawful on the material before the arbitrator.

The Court reasoned that the arbitrator’s erroneous conclusion about illegality had a decisive downstream effect: it led to the arbitrator ignoring all evidence emanating from the undercover operation that had been adduced by SAPS at arbitration. Because that evidence included direct observations by SAPS members, recovery of identified banknotes, and undisputed video evidence and transcript, the Court considered that excluding or disregarding it produced a result that was unsustainable on the facts and could not reasonably be reached on the material properly construed. In this respect, the Court treated the award as falling outside the band of decisions that a reasonable decision-maker could make, applying the review threshold associated with the constitutional standard of reasonableness discussed in the authorities cited.

Turning to the evidentiary dispute, the Court held that the arbitrator ought to have determined whether SAPS had proved the allegations on a balance of probabilities by evaluating the conflicting versions in accordance with the approach described in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA). This entailed assessing credibility, reliability, and probabilities, rather than avoiding the merits through a threshold finding of illegality.

Applying that approach to the record, the Court found that SAPS’s evidence was clear, consistent, and reliable, while the respondents’ version was improbable and materially unexplained. In particular, the respondents did not provide a satisfactory explanation for why a person supposedly unknown to them would refer, on the recorded transcript, to a prior discussion and efforts to raise money “which we discussed,” nor why the third respondent would give his telephone number to Mr Wiwi after allegedly merely counting money for him. The respondents also failed to explain why banknotes identified as those provided to Mr Wiwi were found in the wallet thrown out of the window and on the floor, consistent with SAPS witnesses’ evidence that the respondents attempted to dispose of the money when confronted.

In weighing probabilities, the Court invoked the principle that the decision-maker must select the more natural or plausible conclusion among competing conceivable ones, as articulated in Govan v Skidmore 1952 (1) SA 732 (N). On that standard, the Court held that the version advanced by SAPS—that the respondents had received money as part of an illicit arrangement and attempted to discard it when police entered—was markedly more plausible than the respondents’ version of an innocent interaction coupled with a conspiracy.

On sanction, the Court applied the considerations identified in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC), including the importance of the rule breached, the reason the employer imposed dismissal, the basis of the fairness challenge, the harm caused, and other contextual factors. The Court characterised bribery and corruption by police officers as extremely serious misconduct that strikes at the core of the relationship of trust and the fundamental obligations of SAPS members. It held that dismissal was an appropriate response, and that no lesser sanction was suitable in light of the gravity of the misconduct and the operational imperative to communicate that such conduct would not be tolerated.

The Court concluded that the arbitration award was unreasonable because it ignored clear evidence of misconduct based on an incorrect premise about illegality and authorisation. It further held that the Labour Court erred in failing to set the award aside on review, and in treating strict adherence to section 252A of the Criminal Procedure Act as determinative in the arbitration context in the manner it did on the facts presented.

5. Outcome and Relief

The Labour Appeal Court upheld the appeal.

It set aside the order of the Labour Court and substituted it with an order that the review application succeeded. The arbitration award was set aside and replaced with a finding that the dismissal of the third and fourth respondents was procedurally and substantively fair.

The Court made no order as to costs, stating that there was no reason in law or fairness for costs to be awarded.

Cases Cited

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC).

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC).

Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA).

Govan v Skidmore 1952 (1) SA 732 (N).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 252A.

Labour Relations Act 66 of 1995 (as amended), section 138.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Labour Appeal Court held that, on the material before the arbitrator, the undercover operation was properly authorised and lawful; the arbitrator’s contrary conclusion led to the improper disregard of material evidence and produced an outcome that could not reasonably be reached.

The Court held further that, properly assessing the evidence and probabilities, SAPS proved on a balance of probabilities that the respondents committed bribery and corruption and attempted to dispose of the marked money when confronted. The Court also held that the misconduct was so serious—particularly in light of the obligations of police officers and the trust relationship—that dismissal was an appropriate sanction, and that the dismissal was both procedurally and substantively fair.

LEGAL PRINCIPLES

The review of an arbitration award in labour matters proceeds on the basis of the reasonableness standard associated with constitutional review, as articulated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) and with reference to Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC). An award may be set aside where it reflects a misconceived inquiry or an outcome that cannot reasonably be reached on the material properly construed.

Where there are mutually destructive versions, the decision-maker must resolve disputes of fact through a structured evaluation of credibility, reliability, and probabilities, following the approach described in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA), rather than avoiding factual findings through an incorrect exclusion of evidence.

In assessing probabilities, a decision-maker is required to prefer the more natural or plausible conclusion among competing possibilities, consistent with the formulation in Govan v Skidmore 1952 (1) SA 732 (N).

In determining the fairness of dismissal as a sanction, the factors described in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) are relevant, including the nature and seriousness of the misconduct, the importance of the rule breached, the harm caused, and the effect on the employment relationship. Misconduct involving bribery and corruption by police officers bears directly on trust and is capable of justifying dismissal where the evidence supports the finding of guilt.

Minister of Police v Safety and Security Sectorial Bargaining Council (SSSBC) and Others (PA16/2021) [2022] ZALAC 123; [2023] 3 BLLR 214 (LAC); (2023) 44 ILJ 1017 (LAC) (29 November 2022)