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[2014] ZALAC 58
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Minister of Safety and Security and Another v Madikane and Others (CA2/13) [2014] ZALAC 58; (2015) 36 ILJ 1224 (LAC) (23 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA2/13
In the matter
between:
THE
MINISTER OF SAFETY AND
SECURITY
.......................................................
First
Appellant
THE
NATIONAL COMMISSIONER OF
POLICE
.................................................
Second
Appellant
and
MTHOZAMI
MADIKANE
........................................................................................
First
Respondent
THE SAFETY AND
SECURITY SECTORAL
BARGAINING
COUNCIL
......................................................................................
Second
Respondent
THUTHUZELA
NDZOMBANE N.O.
(ARBITRATOR)
........................................
Third
Respondent
Heard: 25
February 2014
Delivered: 23
October 2014
Summary: Review
of arbitration award- employee charged and found guilty of misconduct
charges for not complying with standing order
in handling blood
sample and defeating the ends of justice and dismissed. Arbitrator
finding on probabilities that dismissal substantively
unfair and
procedurally unfair because employee not fit to appear at the
disciplinary hearing and ordered reinstatement - Labour
Court
partially setting aside arbitration award but upholding arbitrator’s
findings on the charge of defeating the ends of
justice- On Appeal
held arbitrator erred materially in his approach to the drawing of
inference of employee’s knowledge and
participation in the
destruction of the blood sample – in not taking into
account all the evidence and the probabilities-
inference drawn that
employee had knowledge and was accomplice in tampering with blood
sample. Arbitrator’s award unreasonable.
Labour Court erred in
upholding arbitration award. Procedural unfairness- Arbitrator
failing to take into account employee’s
witness’s
evidence that employee was fit to appear in the disciplinary hearing
if represented and employee’s participation
in other
proceedings- Arbitrator’s finding unreasonable. Cross-appeal on
costs dismissed. Appeal upheld arbitrator’s
award set aside and
substituted- dismissal confirmed.
CORAM: TLALETSI
DJP, HLOPE
et
COPPIN AJJA
JUDGMENT
COPPIN AJA
[1] This is an
appeal against part of the judgment and order of the Labour Court
(Lagrange J) in terms of which an award of the
third respondent,
acting as arbitrator under the auspices of the second respondent and
in which it was found that the dismissal
of the first respondent (“
Mr
Madikane
”) was substantively and procedurally unfair and
reinstating Mr Madikane to his employment, was reviewed and only
partly set
aside. Mr Madikane is also cross appealing against the
costs order of the Labour Court.
Background facts
[2] It is common
cause that early on the morning of 26 November 2007, members of the
South African Police Services (“SAPS”)
arrested Mr Tony
Yengeni for alleged drunken driving. A sample of his blood (“
the
blood sample
”) was taken and was to be sent by the
investigating officer, once appointed, to the Laboratory for analysis
and, more particularly,
to establish whether the alcohol level in Mr
Yengeni’s blood at the relevant time exceeded the legal limit.
Pending its submission
to the Laboratory, the blood sample, which was
duly sealed, was placed in a drop safe at the Goodwood Police Station
in the care
of a SAP13 clerk, a member of the SAPS stationed there.
[3] On the same day,
(i.e. 26 November), Inspector Lock, who was stationed at the Goodwood
Police Station, was appointed investigating
officer in the matter
after he had duly informed the Station Commander, Senior
Superintendent Hewana (“
Mr Hewana
”) of Mr
Yengeni’s arrest. Upon Inspector Lock’s appointment as
investigating officer in the matter, Mr Hewana
attempted to enlist
his cooperation to tamper with the blood sample on promises that it
would be good for his career prospects.
[4] Inspector Lock
informed his superior in the detective section who was also stationed
at the Goodwood Police Station, Superintendent
Izaks, of Mr Hewana’s
request and his fears and reservations of either cooperating or not
cooperating with Mr Hewana concerning
the blood sample. Inspector
Lock did not want to continue being the investigating officer in the
matter and suggested that Superintendent
Izaks appoint another senior
police officer to replace him.
[5] Mr Madikane, a
senior police officer of many years’ standing, with the rank of
captain, had just been transferred to Goodwood
Police Station and it
was his first day on duty there on the 26 November 2007.
Superintendent Izaks appointed him as investigating
officer in the
matter on that same day. She did not inform him of Mr Hewana’s
approach to Inspector Lock, but warned him
to be careful.
[6] It is common
cause that Mr Hewana, who was unaware that Inspector Lock had
informed Superintendent Izaks of his request to tamper
with and
corrupt the blood sample and unaware that Inspector Lock was no
longer the investigating officer in the matter, yet again
approached
Inspector Lock in order to secure his cooperation with the tampering.
Inspector Lock had informed Mr Hewana that he
was no longer the
investigating officer and that Mr Madikane had been appointed in his
stead.
[7] It is further
common cause that later on that same day (i.e. on the 26 November),
Mr Madikane collected the blood sample from
the SAP13 clerk who
retrieved it from the drop safe. Mr Madikane did not take the blood
sample to the Laboratory but left it in
a desk drawer in Mr Hewana’s
office with Mr Hewana’s knowledge and consent. It was
also not disputed that after
collecting the blood sample Mr Madikane
had been informed by a Care Centre of his son’s illness; and
that after leaving the
blood sample in Mr Hewana’s office Mr
Madikane had gone to fetch his son from the Centre and took him to a
doctor in the
afternoon of 26 November.
[8] It is further
common cause that the next day, Mr Madikane got another policeman,
Constable Gaya, to assist him with the completion
of the necessary
forms for the submission of the blood sample to the Laboratory and
that after Mr Madikane had retrieved the blood
sample from Mr
Hewana’s office, Constable Gaya took the blood sample to the
Laboratory.
[9] It was common
cause that the seal of the blood sample was not tampered with from
the time it was sealed after it was taken from
Mr Yengeni, until it
was left by Mr Madikane in Mr Hewana’s office.
[10] It was also not
disputed that after receiving the blood sample from Constable Gaya
the Laboratory established that the seal
of the blood sample had been
tampered with and that the blood sample had been diluted and rendered
useless for the purpose for
which it had been taken in the first
place.
[11] It is further
common cause that the original docket in the matter had been altered.
In particular, the times of arrest had
been changed on the
instruction of Mr Hewana.
[12] Mr Hewana and
Mr Madikane were charged, in separate hearings, with misconduct
following the corruption of the blood sample.
It is common cause that
Mr Hewana was found guilty at his disciplinary hearing of tampering
with the blood sample and that he was
consequently dismissed. Mr
Madikane had testified falsely at the disciplinary hearing of Mr
Hewana and contrary to a written statement
and evidence subsequently
given by him at his own disciplinary enquiry, to the effect that Mr
Hewana was not aware that he, (Mr
Madikane) had placed the blood
sample in the drawer of Mr Hewana’s desk.
[13] Mr Madikane was
charged at his disciplinary enquiry, firstly with a failure to comply
with standing order 335.9, which relates
to the safekeeping of
exhibits, in particular, the blood sample (as I will explain in more
detail later) and, secondly, with defeating
the ends of justice. The
latter charge related to the tampering with the blood sample. At his
disciplinary hearing, Mr Madikane
was found guilty of both charges
and was dismissed. An internal appeal to the Appeals Authority of the
SAPS was also unsuccessful.
Mr Madikane thereupon took the matter to
the Bargaining Council, the second respondent, complaining that his
dismissal was both
substantively and procedurally unfair.
[14] The third
respondent in his award found in favour of Mr Madikane. Several
witnesses were called at the arbitration proceedings.
Inspector Lock,
Superintendent Izaks, Constable Gaya, Inspector Rhona Burger,
Inspector Taljaard, Mr Fahim Charles, Director Brandt,
Superintendent
Khanyisa Mzimkulu (Chief Psychologist), Ms Buyile Mdluli and Ms
Denise Beukes gave evidence on behalf of the appellant.
Mr Madikane
called a psychiatrist, Dr Christopher George, and also gave evidence
himself. I will deal with some of the detail of
the evidence
presented in considering the grounds of appeal.
[15] Mr Madikane’s
defence at his disciplinary enquiry, and subsequently at the
arbitration, was that he was not guilty of
any of the charges. He
testified that just after retrieving the blood sample from the SAP13
clerk, he received a telephone call
from his child’s Care
Centre informing him that his child was ill. This necessitated
fetching his child from the Centre and
taking him to a doctor. As a
result, he could not take the blood sample to the Laboratory. When he
did not find Superintendent
Izaks in her office, he sought Mr Hewana
and left the blood sample in Mr Hewana’s care. He put it in a
drawer of Mr Hewana’s
desk, where it was covered with some
papers. He denied knowing of Mr Hewana’s intention to tamper
with or corrupt the blood
sample. He ascribed his testimony at Mr
Hewana’s hearing, i.e. to the effect that Mr Hewana was not
aware of the blood sample
being in his drawer, to an error, which he
also ascribed to a psychological condition, namely, depression, which
Dr George testified
about.
[16] I have to point
out at this stage that, having found that it was not disputed that Mr
Madikane had received a call from the
Care Centre saying that his
child was ill; that he had taken his child to a doctor at Kuilsrivier
and was there at 16h30 and that
his version appeared to be probable
in circumstances, the third respondent found that since standing
order 335 provided that the
Station Commander was primarily
responsible for safeguarding of exhibits and that there was no
evidence that Mr Madikane knew or
was aware of Mr Hewana’s
intentions with the blood sample, Mr Madikane was not guilty of
breaching the standing order or
of defeating the ends of justice. The
third respondent held that even if Mr Madikane “
was guilty
of breaching the standing
order”, he did not believe that
it would have led to a dismissal because, at best, Mr Madikane would
only have committed an
act of negligence and that does not constitute
a dismissible offence. The third respondent found in respect of that
charge that,
in any event, the mitigating factors raised by Mr
Madikane were sufficient to exclude dismissal as a sanction.
[17]
In respect of the second charge, namely that of defeating the ends of
justice, the third respondent found that “
there
[was] not clear evidence that
[Mr
Madikane]
was
aware that Mr Hewana intended to tamper with the blood sample and
also no evidence to suggest that [Mr Madikane] had intentionally
assisted Mr Hewana to accomplish his illicit conduct
”.
Concerning the appellants’ reliance on circumstantial evidence
to prove this charge, the third respondent, having
referred to
academic writing on the subject
[1]
stated “
[I
have
]
already
found that there is no evidence that shows that
[
Mr
Madikane
]
was
aware of Mr Hewana’s illicit intention. I also found that
[the]
evidence
of both Superintendent Izaks and that of Inspector Taljaard was
contradictory and stands to be rejected. In the light
of the
above evidence there are no consistent facts proved by the respondent
in this regard. The evidence of [Mr Madikane] which
was left
unchallenged was that he had the intention of dispatching the blood
sample to
[the]
Laboratory
but was unable due to sickness of his child which evidence appeared
to
[be]
more
probable in the circumstances.
”
[18] The third
respondent found that, at best for the appellants, they had a strong
suspicion “
that Mr Madikane might be involved in that act of
misconduct, but that was not enough to find him guilty of the offence
charged
and that the appellant had to prove Mr Madikane’s guilt
on a balance of probabilities
”.
[19] The third
respondent also held that if his conclusion regarding the proof of Mr
Madikane’s guilt was wrong, then he would
nevertheless conclude
in effect that Mr Madikane was not guilty of the offence charged, or
if he was guilty, should not have been
dismissed, because of the
appellants’ inconsistent treatment of Mr Madikane and the other
accomplices of Mr Hewana, namely,
Constables Jeftha and Voskuil, who
tampered with the docket, and of Superintendent Izaks, who knew of Mr
Hewana’s approach
to Inspector Lock and had done nothing about
it. The third respondent surmised that if Constables Jeftha and
Voskuil had been charged
with misconduct and found guilty, a sanction
no greater than a final written warning would have been imposed upon
them. Although
the third respondent acknowledged that merely because
those employees did not receive a sanction equal to their conduct
would not
exonerate Mr Madikane from wrongdoing if it was proved that
he had done wrong.
[20] The third
respondent, apparently accepting the evidence of Mr Madikane and Dr
George, held that Mr Madikane had not been fit
to participate in the
disciplinary proceedings and his subjection to those proceedings
despite his psychological problems as testified
to by Dr George,
namely, depression, rendered those proceedings procedurally unfair.
The third respondent rejected Superintendent
Mzimkhulu’s
opinion, formulated after the disciplinary enquiry and on the basis
of an examination of a transcript of the
disciplinary proceedings, to
the effect that Mr Madikane was fit to participate in the
disciplinary enquiry.
[21] Having found
that Mr Madikane’s dismissal was both procedurally and
substantively unfair, the third respondent issued
an award,
inter
alia
, ordering the SAPS to re-instate Mr Madikane on the same
conditions that applied prior to his dismissal. In terms of the
award,
Mr Madikane was to report for duty on 3 May 2010. The third
respondent also ordered the SAPS to pay Mr Madikane back pay in the
amount of R244 333,11 by no later than 31July 2010. The third
respondent made no order regarding the costs.
The proceedings in
the Labour Court
[22] The appellants
brought an application in the Labour Court in terms of section 145 of
the Labour Relations Act No 66 of 1995
(“
the LRA
”)
to review and set aside the third respondent’s award on certain
specific grounds and on the general ground that it
was not an award
that a reasonable decision-maker would have made.
[23] In respect of
the third respondent’s finding of procedural fairness, it was
specifically averred by the appellants that
the third respondent had
failed to apply his mind, or to properly consider the evidence of
Superintendent Mzimkhulu and Ms Mdluli,
who were present at the
proceedings relating to the promotion dispute that Mr Madikane had
with SAPS and where Mr Madikane testified.
It was further contended
that the third respondent had failed to properly consider that Mr
Madikane had also testified at Mr Hewana’s
disciplinary enquiry
despite his alleged suffering from a major depressive episode.
[24] It was further
contended on behalf of the appellants in their application for review
that the third respondent failed to properly
consider Dr George’s
evidence that Mr Madikane would have been able to deal with facts
that were of significance to him.
It was submitted that the evidence
pertaining to the tampering with the blood sample was of significance
to Mr Madikane and that,
therefore, he was in a position to deal with
such evidence. It was also submitted that Mr Madikane contradicted
himself concerning
Mr Hewana’s knowledge of the blood sample
being put in his drawer and had deliberately set out to falsely
testify at Mr Hewana’s
hearing that Mr Hewana did not know of
it, in order to exonerate Mr Hewana; and that Mr Madikane
subsequently testified at his
own disciplinary enquiry that Mr Hewana
knew that he had put the blood sample in the drawer in order to
exonerate himself.
[25] As regards the
substantive fairness, it was contended on behalf of the appellants
regarding the first charge, that standing
order 335.1 provided that
the Station Commander was responsible for the safe custody of all
property handed in at the charge office
and that such responsibility
may be delegated to another member of the SAPS at a larger centre,
but standing order 335.2 provided,
inter alia
, in respect of
small items, such as blood samples, that they must be confined to a
safe or a strong room for safekeeping if the
police station has such
facilities. It was further contended that order 335.9 provided that
while in the police’s custody
the greatest care must be taken
of exhibits and every precaution must be taken to prevent them from
being tampered with. It was
averred in the application for review
that the third respondent had to determine whether the leaving of the
blood sample in a drawer
of Mr Hewana’s desk was in compliance
with the standing order. There was evidence by Inspector Burger, the
SAP 13 clerk and
Director Brandt, that the placing of a sample in a
drawer, did not comply with the standing order and that had the third
respondent
taken their evidence into account, he could not have
concluded that Mr Madikane had in fact complied with standing order
335.
[26] Regarding the
second charge, namely, that of defeating the ends of justice, it was
contended in the application of review on
behalf of the appellants
(i.e. the applicants in the court
a quo
), that even if there
was no direct evidence that Mr Madikane knew that Mr Hewana intended
to tamper with the blood sample and that
Mr Madikane assisted Mr
Hewana in that regard, those were the only reasonable inferences to
be drawn and they were consistent with
the proven facts. In that
regard, it was contended in particular that: the blood sample had
been tampered with between the time
Mr Madikane collected it from the
SAP 13 clerk (i.e. Inspector Burger) and when it was handed to
Constable Gaya to take to the
Laboratory; only Mr Madikane and Mr
Hewana exercised control over the blood sample during the
aforementioned period; Mr Hewana
knew that Inspector Lock was no
longer the investigating officer and that he had been replaced by Mr
Madikane; Mr Hewana knew that
it was Mr Madikane’s duty, as
investigating officer, to take the blood sample to the Laboratory;
the original docket which
had been handed to Mr Madikane had been
altered and tampered with by the arresting officers on the
instruction of Mr Hewana in
that, they changed the time of Mr
Yengeni’s arrest; Mr Madikane, as investigating officer,
exercised control over the docket
and it was Mr Madikane who put the
docket that had been altered in Superintendent Izaks’ safe.
Superintendent Izaks only
discovered that the docket in her safe was
not the ‘original’ docket after she had been called to a
meeting concerning
the tampering with the blood sample; Mr Madikane
deliberately testified falsely at Mr Hewana’s hearing that Mr
Hewana did
not know of the blood sample that had been put in his
drawer in order to exonerate Mr Hewana.
[27] Regarding the
inconsistency point, it was contended on behalf of the appellants in
the application for review that, in respect
of Superintendent Izaks,
the third respondent had failed to take into account that it was not
the case of the police that Superintendent
Izaks had failed to comply
with the standing order, or that she had tampered with the blood
sample. Furthermore, that Superintendent
Izaks’ conduct after
she had been informed by Inspector Lock of Mr Hewana’s
intention was reasonable. She could not
confront Mr Hewana lest
Inspector Lock had misunderstood Mr Hewana and that the appointment
of a senior officer to replace Inspector
Lock was a reasonable
measure taken by her to safeguard the integrity of the blood sample
because Mr Hewana would have been less
inclined to approach such an
officer to tamper with the blood sample. It was submitted that the
SAPS were consistent because Mr
Hewana had been charged with
misconduct arising from the tampering with the blood sample and had
been dismissed.
[28] It was further
submitted on behalf of the appellants that the third respondent erred
in finding that Superintendent Izaks and
Inspector Taljaard had
contradicted each other in all material respects. On the contrary, so
it was contended, Inspector Taljaard’s
evidence corroborated
that of Superintendent Izaks in material respects. It was accordingly
contended that the third respondent
failed to properly consider all
the evidence that had been presented at the arbitration and that he
had made an unreasonable credibility
finding in respect of
Superintendent Izaks and Inspector Taljaard. It was further argued
that the third respondent also, and accordingly,
erred in the
weighing- up of the probabilities and the inconsistencies in Mr
Madikane’s evidence and came to a conclusion
which a reasonable
decision-maker would not have come to.
[29] Mr Madikane
opposed the review application in the court
a quo
and
contended, in essence, that the third respondent was correct in his
finding and conclusions and that his award was indeed one
that a
reasonable decision-maker would have made in the light of the
evidence and the circumstances. Mr Madikane,
inter alia
,
contended that there was no direct evidence at the arbitration
hearing that he knew that Mr Hewana intended to tamper with the
blood
sample, and that it had not been put to him that he was aware of
that. He contended that the evidence of Superintendent Izaks
and
Inspector Taljaard was “
of [an] exceptionally poor quality
”.
He further contended in respect of the credibility findings by the
third respondent, that those findings, typically, do
not warrant
interference on review because the arbitrator “
is steeped in
the matter
” and “
enjoys the advantage of being
face-to-face with the witnesses
”. In any event, so he
contended, the credibility findings were reasonable.
[30] The court
a
quo
upheld the appellants’ argument regarding the breach of
standing order 335. The court
a quo
held that it was clear
that the third respondent (i.e. the arbitrator) adopted Mr Madikane’s
broad interpretation of the
standing order, namely, that since the
Station Commander was responsible for the safekeeping of property and
exhibits, there was
sufficient compliance if Mr Madikane left the
exhibit with the Station Commander, but then went on to hold that the
third respondent
did not act reasonably in concluding that Mr
Madikane did not breach the standing order by leaving the blood
sample in the care
of the Station Commander. The court
a quo
reached this conclusion on the basis of the following: placing of the
sample in a drawer (which was not proved to have been Iockable),
where it was merely covered with papers, was not reasonably
reconcilable with Mr Madikane’s duty to exercise the greatest
care with the blood sample and to prevent it from being lost, damaged
or tampered with; the designated storage facility at the
Goodwood
Police Station was a drop safe facility that was supervised by the
SAP 13 clerk and it was not shown to have been impossible
for Mr
Madikane to have returned it to that facility for safekeeping –
particularly, because, as Mr Madikane himself conceded,
it would not
have taken three to five minutes for him to get there; the fact that
Mr Madikane might have had a call to collect
his child because of
illness, did not justify his abandonment of his duty to take the
greatest care of evidence that was in his
custody. The court
a quo
accordingly set aside the third respondent’s finding that Mr
Madikane was not guilty of breaching the standing order and
substituted it with the finding that Mr Madikane was indeed guilty of
breaching it.
[31] With regard to
the charge of defeating the ends of justice, the court
a quo
held, in effect, that the third respondent’s finding on that
charge could not be said to be so unreasonable that no reasonable
arbitrator could have made it. In particular, it held that the
finding. that Mr Madikane’s evidence of his personal emergency
relating to the illness of his child was uncontested and that his
version of events was therefore plausible, was not a finding
a
reasonable arbitrator could not make. However, the court
a quo
stated parenthetically that if it was an appeal, it would have been
inclined to hold that “
the arbitrator’s conclusion on
the probabilities was wrong when all the evidence is properly
weighed
”. Furthermore, the court
a quo
held that Mr
Madikane’s supposed complicity in the tampering with the docket
was not an issue that was canvassed directly
with him in
cross-examination and that it was never put to him that it would be
argued that he was not a credible witness, because
he adapted his
evidence according to the needs of the enquiry in which he was
testifying. The court
a quo
held, therefore “
in
fairness to the arbitrator
” if the appellants never “
put
the propositions they now seek to advance to [Mr] Madikane during his
testimony
” the arbitrator cannot “
be blamed for
not considering the connection between that evidence and the
likelihood of him acting as [Mr] Hewana’s accomplice
in
tampering with the blood sample
”. Accordingly, so the court
a quo
found, the arbitrator did not act “
wholly
unreasonably in accepting the coincidental explanation of how the
sample fell into Mr Hewana’s hands
” or commit a
reviewable error in not considering the contradictions between Mr
Madikane’s evidence in Mr Hewana’s
disciplinary enquiry
and in his own arbitration, concerning Mr Hewana’s knowledge of
the sample having been placed in his
drawer.
[32] In respect of
the issue of the alleged inconsistency in the treatment of Mr
Madikane, Superintendent Izaks and the two constables
who altered the
docket and changed their statements, the court
a quo
held that
the arbitrator failed to appreciate the relevance of the evidence
given by Ms Beukes that the constables were very new
in the SAPS at
that stage and had been instructed by a very senior officer namely,
Mr Hewana, to tamper with the docket and alter
their statements. The
court
a quo
also held that the arbitrator did not give any
real consideration to the difficult position Superintendent Izaks
found herself
in where she had no direct evidence of Mr Hewana’s
intentions with the blood sample and took steps, which she thought,
would
minimise the risk of him being able to make good his reported
intentions. The court
a quo
also held that the arbitrator had
also failed to consider Superintendent Izaks’ evidence that she
had repeatedly refused
to take the docket back from Mr Madikane
without the blood sample and assumed that Mr Madikane would retrieve
the sample and put
it, together with the docket, into the safe in her
office.
[33] Having remarked
that the arbitrator’s acceptance of the possibility that after
Mr Madikane had deposited the blood sample
in the drawer of Mr
Hewana’s desk, Mr Hewana had tampered with the blood sample
himself without Mr Madikane’s knowledge,
would have been
unreasonable if only the undisputed facts were considered, the court
a quo
held further that it is difficult to avoid the
conclusion that Mr Madikane had direct knowledge that the docket was
tampered with
since there was no evidence that he ever relinquished
control of it between the time he removed it from Superintendent
Izaks’
safe to the time he replaced it there. The court
a
quo
stated in that regard: “
If he allowed the docket to
be tampered with at the time when it was under his control, then
there is more reason to believe he
would have assisted in the
interference of the blood sample, even if it was only by way of
making it available to Hewana.
His change of testimony between
Hewana’s enquiry and his own is also cause for concern about
his veracity which the arbitrator
did not even consider
.”
[34] The court
a
quo
then went on to conclude on the issue of consistency, that
the arbitrator had “
applied an unreasonably broad
comparative approach
” and that he had failed “
to
consider material evidence which might have justified not acting in
the case of the individuals mentioned
”. In respect of the
issue of the procedural fairness of the disciplinary enquiry, the
court
a quo
concluded, that even though some “
trenchant
points
” were made why it was not unreasonable for the
chairperson of the enquiry to have proceeded with the disciplinary
enquiry,
it could not find that the arbitrator’s finding, that
the enquiry ought not to have proceeded, was unreasonable.
[35] The court
a
quo
held that even if Mr Madikane breached standing order 335,
the sanction of dismissal for that transgression was too harsh and
that
an order of reinstatement with a final written warning was a
more appropriate sanction. The court
a quo
accordingly
ordered,
inter alia
, that the arbitrator’s finding that
Mr Madikane was not guilty of failing to comply with standing order
335.9 be set aside
and substituted with a finding of guilt in respect
of that charge; that the relief ordered by the arbitrator be set
aside and replaced
with an order that SAPS (i.e. the appellants)
reinstate Mr Madikane “
with retrospective effect to 1
January 2010
” and pay to him arrear remuneration due to him
within 30 days of him resuming his duties. Furthermore, that the
appellants
issue Mr Madikane with a final written warning for his
non-compliance with standing orders. The parties were ordered to pay
their
own costs.
The appeal
[36] After having
unsuccessfully applied to the court
a quo
for leave to appeal
against part of its judgment and order, the appellants successfully
petitioned this Court for leave to appeal
accordingly. Mr Madikane
only noted a cross-appeal against the court
a quo’s
ruling on costs and sought to have that order substituted with an
order that the appellants (i.e. the applicants in the court
a quo
)
pay his costs jointly and severally, the one paying the other to be
absolved. The appeal of the appellants is directed at what
the court
a quo
held in respect of the second charge, namely, that of
defeating the ends of justice, including the sanction and its
conclusion
that the arbitrator’s finding that the disciplinary
proceedings were procedurally unfair, was not so unreasonable that a
reasonable arbitrator would not have made such a finding.
[37] In respect of
the second charge, the appellants’ arguments, in essence, were
that if all the evidence was properly evaluated,
the only reasonable
inference that could have been drawn was that Mr Madikane knowingly
enabled Mr Hewana to tamper with the blood
sample and so was an
accomplice of Mr Hewana in defeating the ends of justice. It was
pointed out,
inter alia
, that the court
a quo
was at
pains to emphasise that if it had been considering an appeal, it
would have been inclined to find that the arbitrator’s
conclusion on the probabilities was wrong, particularly, if all the
evidence was properly assessed. On that aspect, it was submitted
that
the court
a quo
erred in nevertheless concluding,
notwithstanding a failure by the arbitrator to properly assess all
the relevant evidence and
the probabilities, that the arbitrator’s
findings were reasonable. In essence, the submissions in this regard
were that the
arbitrator’s failure to take into account
relevant evidence could never be said to be reasonable and that had
the arbitrator
taken into account such evidence, he could never
reasonably have made the findings that were being contested.
[38] It was
submitted that, in addition to the evidence of Inspector Lock that Mr
Hewana requested his assistance to tamper with
the blood sample and
Mr Hewana’s knowledge that Mr Madikane replaced him (i.e.
Inspector Lock) as investigating officer in
the matter, there were
other proven facts that pointed to collusion between Mr Madikane and
Mr Hewana. Mr Madikane conceded that
it would have taken no more than
three minutes for him to return the blood sample to the SAP 13 clerk
after he got a call from
his child’s school; it was not
disputed that the original docket in the matter had been tampered
with by the constables the
night after the arrest; that the docket
was at all times in Mr Madikane’s control according to
Superintendent Izaks; that
Mr Madikane only brought the docket back
in the afternoon of the 27
th
; that Superintendent Izaks
gave Mr Madikane the keys to the safe and he put the docket in the
safe and returned the keys to her;
that Mr Madikane at no stage
denied or placed in issue that he was in control of the docket and
Superintendent Izaks’ evidence,
of him collecting the docket
from the safe and returning it, was not disputed; Mr Madikane gave
evidence at Mr Hewana’s disciplinary
hearing, which was
favourable to Mr Hewana and inconsistent with what he had said in his
statement and what he testified to in
his own disciplinary hearing,
namely, to the effect that Mr Hewana was not aware of the blood
sample in his drawer; Mr Madikane’s
explanation for giving such
evidence was not credible; Mr Madikane knew what the charges against
him were, namely, that he had
been complicit with Mr Hewana in
tampering with the blood sample; that the questioning of Mr Madikane
and the witnesses was directed
at establishing that he was complicit
in tampering with the blood sample.
[39] It was also
submitted on behalf of the appellants that the third respondent’s
decision was one which a reasonable decision-maker,
having taken into
account and having properly assessed all of the evidence, would not
have arrived at. With regard to the sanction,
it was submitted that
the first charge was so serious that a sanction of dismissal in
respect of that charge alone was justified,
and that dismissal was
clearly justified in respect of the conviction on the second charge.
[40] In respect of
the procedural fairness issue, it was argued on behalf of the
appellants that the court
a quo
erred in holding that the
arbitrator’s finding of procedural unfairness at the
disciplinary enquiry was reasonable because
the arbitrator had failed
to apply his mind properly to the evidence adduced by Mr Madikane’s
own expert witness, the psychiatrist,
Dr George. In particular, it
was submitted that Dr George’s evidence-in-chief, that Mr
Madikane was able to be present at
the enquiry if someone represented
him, and Dr George’s concessions under cross-examination that
Mr Madikane would be able
to participate in the hearing, understand
what was going on and be able to appreciate what the reason for the
hearing, was not
taken into account. On that aspect, it was submitted
that Mr Madikane was represented throughout the enquiry and had
attended two
other hearings before his own disciplinary hearing, one
relating to a promotion dispute which he had with the employer, which
he
had initiated and in which he was a party and the disciplinary
enquiry of Mr Hewana where he testified as a witness.
[41]
Relying on the decision in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
and the recent decisions in
Herholdt
v Nedbank Ltd
[3]
and
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,
[4]
it was submitted on behalf of Mr Madikane, basically, that the court
a
quo
was correct in finding, in respect of the matters in issue, that the
third respondent’s findings and conclusions were not
so
unreasonable that a reasonable decision-maker would not have made
them and that, therefore, the appeal should be dismissed with
costs.
In respect of the counter-appeal on the costs order made by the court
a
quo,
it was submitted that the court
a
quo
ought to have ordered the appellants (i.e. the applicants there) to
pay Mr Madikane’s costs for the review jointly and severally,
because Mr Madikane was substantially successful in opposing the
review application and that there was no basis in law or fairness
why
a costs order should not have been given in his favour against the
appellants.
[42] Regarding the
charge of not complying with standing order 335: the court
a quo’s
finding that Mr Madikane did in fact breach the order and that he
ought to have been convicted accordingly was not appealed against
or
challenged. In my view, those findings of the court
a quo
are,
in any event, unassailable. Because of my conclusion on the
second charge, namely, that of defeating the ends of justice,
I shall
first deal with the merits of that charge and then with the issue of
the sanction and, lastly, with the issue of the procedural
fairness
of the disciplinary enquiry.
Defeating the
ends of justice
[43] There was no
direct evidence that Mr Hewana approached Mr Madikane to assist with
the tampering of the blood sample, or that
Mr Madikane knew that Mr
Hewana intended to tamper with it. The employer sought to prove this
by means of inference.
[44]
The position regarding the process of inferential reasoning is trite.
Citing
R
v Blom
[5]
and
Ocean
Accident and Guarantee Corporation Ltd v Koch
[6]
where the court referred to ‘
Wigmore
on
Evidence’,
[7]
Nugent JA, in
S
A Post Office v Delacy and Another
[8]
summarised the position as follows:
‘
The
process of inferential reasoning calls for an evaluation of all the
evidence and not merely selected parts. The inference that
is sought
to be drawn must be ‘consistent with all the proved facts.
If it is not, then the inference cannot be drawn’
and it must
be the ‘more natural or plausible, conclusion from among
several conceivable ones’ when measured against
the
probabilities.
’
In
Ocean
Accident
, Holmes JA explained that the word “
plausible
”
was used in
Wigmore
in the sense of “
acceptable,
credible, suitable
”.
[45] It was clearly
not reasonable for the third respondent to not take into account all
the evidence in deciding whether the second
charge of misconduct had
been proven against Mr Madikane. The latter’s evidence about
the emergency that confronted him after
being called by his child’s
school concerning his child’s health and the fact that that
evidence was not disputed is
clearly not determinative of the
inference to be drawn. The inference sought to be drawn could only be
drawn in the light of all
of the evidence. In my view, the court
a
quo
erred in finding that despite the third respondent having
ignored evidence material to the issue, his conclusion, concerning
the
inference to be drawn, was reasonable. The third respondent’s
conclusion on the inference to be drawn is based on a material
misdirection.
[46]
The court
a
quo
was at pains to point out that if it had been dealing with an appeal
it would have been more inclined to say that the arbitrator’s
conclusion on the probabilities was wrong “
when
all the evidence is properly weighed
”.
The court
a
quo
seemed thereby to suggest, or imply that, because of the test for
reviews (which is different to that of appeals) a failure to
weigh
all the evidence and probabilities, in deciding whether to draw
inferences, was reasonable. That approach cannot be correct.
The
failure to weigh all of the relevant evidence and the probabilities
to draw inferences and make findings cannot be said to
be reasonable.
It is not only wrong not to take into account all of the relevant
evidence but is also unreasonable and clearly
what a reasonable
decision-maker would not do.
[9]
[47] Most of the
evidence was common cause, save for some aspects such as, for
example, whether Mr Madikane knew of Mr Hewana’s
aims and
intentions with the blood sample and whether Mr Madikane assisted Mr
Hewana to achieve them, by making the blood sample
available to Mr
Hewana; whether Mr Madikane had removed the docket from
Superintendent Izaks’ office where it was kept in
a safe and
whether he had been in control of it throughout, i.e. from the time
the matter was assigned to him, or from the time
he took it from
Superintendent Izaks’ office, until a falsified docket had been
deposited back into the safe in Superintendent
Izaks’ office;
whether Mr Madikane had a longstanding, friendly relationship with Mr
Hewana at the time of the incident,
as opposed to a mere “
nodding
acquaintance
”; and whether Mr Madikane knew how to deal
with exhibits such as blood samples in “
drink and drive
cases
”. The last aspect does not require any specific
further elaboration.
[48]
At the outset, something needs to be said about Appellate and
reviewing court’s deference to factual findings of the
trier of
facts, in this instance, an arbitrator. The rule of practice that
such courts will not readily interfere with such findings
is not an
inflexible one. The factual findings of an arbitrator are not cast in
stone and may be interfered with if they are unreasonable
or based on
a misdirection and are material, in that they impact on the outcome
of the matter.
[10]
The
rule was never intended to ‘tie the hands’ of the appeal
or reviewing court, but was intended to assist those
courts to do
justice. The Labour Court has the power, in terms of s 145(4), when
setting aside an arbitrator’s award, to
determine the dispute
in the manner it considers appropriate.
[49] In my view, the
following could be readily found to have been proved on the evidence,
inter alia,
that:
49.1 the blood
sample was properly extracted from Mr Yengeni and was properly sealed
and not tampered with up to the time it was
collected by Mr Madikane
from the SAP 13 officer, Inspector Burger, at about 13h30 on Monday
26
November 2007;
49.2 Mr Hewana had
approached Inspector Lock, the first investigating officer in the
matter, to enlist his cooperation in order
to gain access to and to
tamper with the blood sample and had told Inspector Lock not to
discuss that with anyone else;
49.3 Mr Hewana knew
that Inspector Lock was no longer the investigating officer and that
Mr Madikane had replaced Inspector Lock;
49.4 having taken
the blood sample from the SAP 13 officer, Mr Madikane did not return
it to the SAP 13 officer, or to the drop
safe, or submit it to the
Laboratory on 26 November, but went to place it in a desk drawer in
Mr Hewana’s office and that
Mr Hewana knew that it was there;
49.5 Mr Madikane
only collected the blood sample from Mr Hewana’s office on
Tuesday the 27 of November 2007 at about 13h00;
49.6 Constable Gaya
took the blood sample from Mr Madikane on 27 November, after Mr
Madikane had collected it from Mr Hewana’s
office, and at Mr
Madikane’s request, took it to the Laboratory where it was
established that the seal of the blood sample
and the blood sample
itself had been tampered with and that the blood sample had been
corrupted;
49.7 the original
docket in the matter, which had been assigned to Mr Madikane, had
been interfered with and the original time of
arrest had been
falsified and altered by the arresting officers, Constables Jeftha
and Voskuil, on the instructions of Mr Hewana;
49.8 Mr Hewana had
been charged at his disciplinary enquiry,
inter alia,
with
tampering with the blood sample and had been found guilty on that
charge and dismissed;
49.9 Mr Madikane had
testified at Mr Hewana’s disciplinary enquiry and, on his own
admission, had given a false version exonerating
Mr Hewana in that he
had testified that when he put the blood sample in Mr Hewana’s
desk drawer, Mr Hewana was not aware
of him doing so and was not
aware of the blood sample being there;
49.10 It would have
taken no more than three to five minutes from the time Mr Madikane
got a call from his son’s school, for
Mr Madikane to have
returned the blood sample to the drop safe at the Goodwood Police
Station.
[50] Regarding the
issues that appear to have been in contention. There was evidence
about Mr Madikane’s relationship with
Mr Hewana. Superintendent
Izaks testified on this aspect during her cross-examination at the
arbitration to the effect that one
of the reasons why she did not
tell Mr Madikane, at the time of appointing him as investigating
officer, about what transpired
between Mr Hewana and Inspector Lock
regarding the blood sample, was because she knew that Mr Madikane and
Mr Hewana were good
friends and out of fear of jeopardising their
friendship. Mr Madikane’s legal representative put to
Superintendent Izaks
that Mr Madikane’s version of the
relationship was that “
he knows Mr Hewana.
[H]
e
does know him, but they’re not good friends. He’d been
transferred – he knows him from the past, but he had been
transferred to that station on that day
”. His legal
representative demanded a response from Superintendent Izaks
regarding that version. Superintendent Izaks’
response was as
follows:
‘
When
Mr Madikane was introduced to me, and in the office of Superintendent
Hewana, he said ‘I know this man for a very long
time where I
know him [from] – we were in college together those years.
He is also from the Eastern Cape, I know him
very well. We are
friends, we. And he did not say anything when Superintendent Hewana
told that to me.
’
In his rejoinder to
her response, Mr Madikane’s legal representative said:
‘
Okay.
Well, you’ve heard Mr Madikane’s version. But let’s
explore that. If you know that they are very good friends;
then it
makes it worse for you. Because what you’ve done now is that
you’ve assigned the case to a person who is very
goods friends
– on your version – with Hewana.
’
[51] Mr Madikane in
his evidence-in-chief gave a different version to that which was put
by his legal representative to Superintendent
Izaks. He denied
knowing Mr Hewana before 26 November. He testified that he only knew
Mr Hewana “
physically
” and only knew the name
“
Hewana
”. Mr Madikane denied meeting Mr Hewana
before 26 November and said that he only knew of him because he once
featured in the
media in the Eastern Cape. Mr Madikane then testified
in response to a leading question put by his legal representative
during
his evidence-in-chief about how he approached Mr Hewana to
leave the blood sample with him. The question and answer was as
follows:
‘
Okay.
So you had met Senior Superintendent Hewana in the morning before
this incident, is that right?
’
Mr Madikane
answered, emphatically: “
No, no, no
.” He then
testified that when he approached Mr Hewana in his office with the
blood sample it was his first time to meet Mr
Hewana. Mr Madikane
testified that he once saw Mr Hewana when the latter was passing
their office and a constable addressed Mr
Hewana as “
Station
Commissioner
”. Mr Madikane testified that at the time Mr
Hewana was wearing uniform and his badges and the constable told Mr
Madikane
that he was “Superintendent Hewana”. Mr Madikane
testified that the first time he spoke to Mr Hewana was when he went
to leave the blood sample with him, but then in response to the
following leading question by his legal representative, namely
“
Okay,
so you hadn’t spoken to him, he hadn’t introduced you to
people at the morning parade?
”, Mr Madikane changed his
version and testified that Mr Hewana had introduced him at the
morning parade and had said things
about him there, that he was “
a
good detective and so on and so and so
”. Mr Madikane now
admitted emphatically that he had met Mr Hewana earlier on that day,
in other words on 26 November. Under
cross-examination by the
police’s legal representative, Mr Madikane testified that he
met Mr Hewana on the morning of 26
November for the first time. Mr
Hewana introduced him to all the staff of the police station in order
for them to know him (i.e.
Mr Madikane).
[52] Viewed in the
light of all the evidence, Mr Madikane’s version of his
relationship with Mr Hewana was contradictory.
He changed his version
of their relationship as he was giving evidence. It is more probable
that Mr Madikane knew Mr Hewana by
the time he started to work at
Goodwood Police Station on 26 November and a finding to that effect
is not only reasonable, but
also justified. The third respondent
failed,
inter alia
, to consider the evidence of the
relationship between Mr Hewana and Mr Madikane, even though that was
very relevant in considering
whether an inference could be drawn that
Mr Madikane had been approached by Mr Hewana to provide him with the
blood sample and
whether Mr Madikane was aware of Mr Hewana’s
intentions with it.
[53] Regarding Mr
Madikane’s control of the docket in the matter: the third
respondent also did not take this evidence into
account. There was
pertinent evidence on this issue. According to Superintendent Izaks,
after Inspector Lock brought her the docket
in the matter, she locked
it in the safe in her office. When she appointed Mr Madikane as
investigating officer, she discussed
the docket with him and told him
to be careful with the investigation; Mr Madikane took the docket
from her and said “
Don’t worry
” and left her
office with it; After a brief period, he returned with the docket and
told her to keep it in a safe; At about
12h30 on 26 November, Mr
Madikane again asked her for the docket because he wanted to fetch
the blood sample from the SAP 13 office
and dispatch it to the
Laboratory for analysis; She gave him the docket and he then left
with it; At about 14h30, while she was
in her office talking to
Inspector Taljaard, Mr Madikane brought the docket back. She
testified that she asked Mr Madikane how
he had dispatched the blood
sample. In reply he told her that he did not dispatch it and that she
should not worry; that the blood
sample was with Mr Hewana. She
refused to take the docket from Mr Madikane in those circumstances
and he left again. According
to Superintendent Izaks, Mr Madikane
returned to her the same day and had the docket in his hand and said
that he was going to
Mr Hewana and she never saw him again for the
rest of that day.
[54] According to
Superintendent Izaks, on Tuesday 27 November, they had a meeting in
Mr Hewana’s office to discuss the annual
awards and Mr Hewana
asked about progress in the investigation of the Yengeni matter. He
asked where the blood and the docket were
and she told him that the
docket was with Mr Madikane and that the blood was in his drawer and
he pretended to be surprised. Later
in the afternoon on 27 November,
Mr Madikane returned the docket to her. She was busy at her desk and
she handed him the key to
the safe. Mr Madikane took the key, went to
put the docket in the safe and returned the key to her. He told her
that the blood
sample had been dispatched. On about the Wednesday 28
November, he came back to her and requested the docket yet again,
because
he wanted to request the Laboratory to expedite the analysis
of the blood sample. She again handed him the key to the safe and he
retrieved the docket himself, found the requested address to the
Laboratory and locked the docket in again.
[55] According to
Superintendent Izaks, on 1 December, she was summoned to a meeting in
Mr Hewana’s office and told to bring
the docket along because
Commissioner Ndebela and Director Brandt were coming to peruse it.
She opened the safe to get the docket
and noticed that the docket
that was there was not the same as the original docket which she
received from Inspector Lock. It was
different in certain respects
and, more pertinently, the date and time of Mr Yengeni’s arrest
were now different. When she
got to Mr Hewana’s office where
Director Brandt and Commissioner Ndebela were waiting, and Mr
Madikane was also present,
the docket was perused. After Commissioner
Ndebela and Director Brandt had left the office, she wanted to
discuss the docket with
Mr Hewana. He and Mr Madikane spoke to each
other in a language that she did not understand. Then Mr Hewana
turned his back to
her and he and Mr Madikane started to laugh. About
an hour later, Mr Madikane telephoned her and told her that he did
not want
anything further to do with the investigation and the
docket. Later that evening Director Brandt also telephoned her and
she informed
him,
inter alia,
that the docket she had brought
to them was not the same as the one she had received from Inspector
Lock.
[56] Mr Madikane’s
version about his contact with and control of the docket differed in
material respects from Superintendent
Izaks’ version. In his
evidence-in-chief at the arbitration hearing, Mr Madikane testified
that when Superintendent Izaks
assigned the case to him there was no
“
physical docket
”. She merely instructed him
orally. This despite Inspector Lock’s unchallenged evidence
that there was a “
physical
” docket that he had
worked on and that he had handed to Superintendent Izaks upon telling
her of the difficulty he had encountered
with Mr Hewana. Mr Madikane
did not say anything much about the docket in his evidence-in-chief.
In response to a question put
to him by his legal representative that
it was Superintendent Izaks’ evidence that he had returned the
docket, he testified
that he returned the docket to Superintendent
Izaks on the Wednesday, that would have been on 28 November. He
testified that he
told her that he does not want to be involved in
the investigation and that she should “
take the docket
”.
All of this implied that he, Mr Madikane, at some point had the
docket with him and only returned it to Superintendent
Izaks on 28
November.
[57] Under
cross-examination, Mr Madikane conceded that the docket was first
with Inspector Lock and that, after the matter was
assigned to him,
Superintendent Izaks gave him the docket and that he returned it to
her again. He denied, however, that she gave
him the docket on Monday
26
November and testified that he only got the docket on
the morning of 27 November when he was dealing with dockets that had
been
brought forward. He testified that Superintendent Izaks was
telling a lie when she said that she gave him the docket on 26
November.
However, Superintendent Izaks’ evidence in that
regard was not challenged when she was cross-examined by Mr
Madikane’s
legal representative.
[58] Mr Madikane
testified that throughout the 26
November he never had the
docket with him and that he only got it on the morning of 27
November, i.e on the Tuesday.
[59] On the
probabilities, it is unlikely that Mr Madikane would have been
assigned the matter without a docket. It was clearly
in existence and
had been handed by Inspector Lock to Superintendent Izaks. In any
event, Inspector Lock’s evidence to that
effect was not
challenged. A perusal of the docket would also have been crucial for
Mr Madikane as investigating officer. He would
have had to peruse it
in order to see what had been done and what was still to be done in
the investigation of the matter. Even
if one does not take into
account Superintendent Izaks’ version of when she gave him the
docket and when he returned the
docket to the safe in her office
(because of the contradictory evidence that Inspector Taljaard gave
in that regard as well), on
Mr Madikane’s own version, he was
in control of the docket from the morning of 27 November. And on his
own version, he returned
the docket on 28 November, after he had
decided that he did not want to be involved in the matter any
further. Constables Jeftha
and Voskuil admitted to fraudulently
altering the docket (i.e. and creating another docket) on the evening
of 27 November. They
inter alia
changed the arrest time and
inserted contents that were not there originally. The docket that
Superintendent Izaks retrieved from
her safe was the falsified one.
There is no evidence at all that she was handed a second docket by Mr
Madikane or that there were
two dockets in the safe in her office
pertaining to the same matter.
[60]
While one does not have to make any finding regarding Mr Madikane’s
involvement in the altering of the docket, on the
evidence, it can be
found that he was in control of the docket in the matter of Mr
Yengeni.
Mr
Madikane’s knowledge of an involvement in Mr Hewana’s
intention to destroy the blood sample
[61]
The inference that Mr Madikane became aware of Mr Hewana’s
intention to tamper with the blood sample and that he actively
and
knowingly assisted Mr Hewana to achieve that objective, by making the
blood sample available to him, is the most natural and
plausible
conclusion when measured against the probabilities and upon a proper
evaluation of all of the evidence and not merely
selected parts. It
is clearly consistent with the proved facts. But the other inference
namely, that Mr Madikane left the blood
sample with Mr Hewana
coincidentally, which is the inference the third respondent (i.e. the
arbitrator) seemingly, drew and which
the court
a
quo
seemed to have found to have been a
reasonable and acceptable inference to draw, is clearly not natural
or plausible when measured
against the probabilities and upon a
proper evaluation of all of the evidence. One does not even have to
reject Mr Madikane’s
version that he received a call from his
child’s school and that he had to take his child to a doctor
and that he did so.
It might have been the case, but that does not
exclude the fact that Mr Hewana wanted access to the blood sample;
that he required
the investigating officer’s cooperation in
tampering with it; an aim and objective that he made know to
Inspector Lock; and
that he got such access to the blood sample that
very same day through Mr Madikane, who had replaced Inspector Lock as
investigating
officer. Mr Madikane’s version that he was
ignorant of Mr Hewana’s intention, considered in the light of
all of the
evidence and the probabilities, cannot reasonably possibly
be true. The court
a quo
erred in finding that the third respondent could reasonably have come
to a different conclusion, as far as the drawing of inferences
and Mr
Madikane’s actual defence (i.e. based on coincidence) is
concerned.
Procedural
fairness of the disciplinary enquiry
[61]
The third respondent failed to take into account Dr George’s
evidence which was not that Mr Madikane was not fit to face
the
disciplinary enquiry, but was that, Mr Madikane was to be represented
by someone – (and he was); and further that Mr
Madikane would
be able to follow the procedures, function well and be in a position
to answer questions. Dr George also conceded
that Mr Madikane was
able to participate in the proceedings and that he knew exactly what
was going on there, including what the
reason for the enquiry was. In
ignoring that evidence of Dr George, the third respondent could not
reasonably come to a conclusion
that the disciplinary enquiry was not
procedurally fair. The fact that Mr Madikane participated in other
proceedings voluntarily
and, apparently, from a perusal of the
records in those proceedings, without difficulty, also militates
against the reasonableness
of the finding on procedural fairness. In
my view, the court
a quo
erred in finding that the third respondent could have reasonably
concluded in the circumstances that the disciplinary enquiry was
not
procedurally fair.
Consistency
[62]
The court
a quo’s
decision regarding the issue of consistency was not appealed against.
In my view, it was correctly held by the court
a
quo
that the third respondent did not
reasonably assess the evidence and take into account relevant facts
in making findings on this
issue and had applied an unreasonably
broad comparative approach. I accordingly need not say anything more
on that aspect.
The sanction
[63]
In my view, there is no question of the appropriateness of a sanction
of dismissal where Mr Madikane’s guilt in respect
of the second
charge has been established. The question whether a penalty of
dismissal in respect of the charge of contravening
standing order 335
is reasonable, becomes irrelevant in those circumstances. In my view,
Mr Madikane’s guilt has been established
in respect of both
those charges on a balance of probabilities. Since they are closely
related, one sanction, namely dismissal,
is appropriate and
justified.
Cross-appeal re:
costs
[64] In light of my
view and conclusions regarding the appeal and in particular, the
finding that the review should have succeeded,
the cross-appeal,
which is premised on Mr Madikane’s success in the court
a
quo
, stands to be dismissed.
[65]
In light of the time period that has elapsed since the disciplinary
enquiry, it would not be in the interests of justice to
refer the
parties back to the Labour Court. All the facts are on record and
before us. This Court is empowered in the interests
of justice to
finally decide the matter.
[11]
[66] In the result,
the following is ordered:
1.
The
appeal is upheld.
2.
The
cross-appeal is dismissed.
3.
The
parties are to bear their own costs of appeal.
4.
The
order of the court
a
quo
is set aside and is replaced with the following order:
‘
1.
The applicants’ late filing of their founding and
supplementary affidavits is condoned.
2.
The
review succeeds, in particular:
2.1 The final
award of the third respondent is set aside in its entirety and is
substituted with the following:
Mr
Madikane is guilty of both charges, namely, that of failing to comply
with standing order 335-9 and of attempting to defeat the
ends of
justice by being an accomplice in the tampering with Mr Yengeni’s
blood sample;
2.2 The sanction
of dismissal is confirmed.
3.
The
parties are to pay their own costs of the review.’
_________________
Coppin
AJA
Tlaletsi
DJP and Hlope AJA agreed.
FOR THE APPELLANTS:
MR E A De Villiers-Jansen
Instructed by the
state attorney Cape Town
FOR THE FIRST
RESPONDENT: MR G A Leslie
Instructed by Godla
and Partners Inc Cape Town
[1]
Schwikkard
and Van der Merwe ‘Principles of Evidence’
2
nd
edition (2002) at page 21 where the authors state:
“Circumstantial evidence often forms an important component of
the information furnished to court. In these instances the
court is required to draw inferences, because the witnesses
made no
direct assertion with regard to the fact in issue. These inferences
must comply with certain rules of logic.”
[2]
[2007]
12 BLLR 1097 (CC).
[3]
[2013]
11 BLLR 1074 (SCA).
[4]
[2014]
1 BLLR 20 (LAC).
[5]
1939
AD 188
at 2-203.
[6]
1963
(4) SA 147
(A) at 159B-D.
[7]
3
rd
Edition para 32.
[8]
2009
(5) SA 255
(SCA) at para 35.
[9]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at para [78] and
Cusa
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at para
[66]
.
[10]
Compare:
Bernert
v ABSA Bank Ltd
2011 (3) SA 92
(CC) at 120-122 paras 105 and 106 where the
Constitutional Court had occasion to discuss the meaning and
implications of the
decision in
R
v Dhlumayo and another
1948 (2) SA 677
(A) concerning the appellate court’s deference
to factual findings of the trial court.
[11]
See
NUMSA
on
behalf of
Sinuko
v Powertech (Pty) Ltd
[2014]
2 BLLR 133
(LAC).