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[2018] ZALAC 45
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Minister of Police and Another v Kgopa and Another (JA42/2017) [2018] ZALAC 45; [2019] 1 BLLR 16 (LAC) (7 June 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not reportable
Case no: JA42/2017
In the matter between:
MINISTER
OF
POLICE
First
Appellant
NATIONAL COMMISSIONER OF
POLICE Second
Appellant
and
MM
KGOPA First
Respondent
LT COLONEL DE
LANGE Second
Respondent
Heard: 24 May 2018
Delivered: 07 June 2018
Summary:
Locus standi
for
the state to review its own decisions under section 158(1)(h) –
Employee dismissed for misconduct – chairperson
of the
disciplinary hearing discharging the matter as the request of the
employee.
Held:
Locus standi
- The law
is settled. Section 158(1)(h) of the LRA empowers the Labour Court to
review decisions of chairpersons at disciplinary
hearings, at the
instance of the employer, in circumstances where the State is the
employer. Concomitantly, the State as employer
has the standing to
institute such review proceedings.
Held: Discharge - the decision of
the chairperson was unreasonable and illegal. The whole point of a
disciplinary hearing is to
provide an employee an opportunity to
respond to the allegations against him or her and to weigh the
probabilities to establish
if misconduct has been committed and what
sanction might be appropriate. The Chairperson erred and acted
unreasonably in treating
the employee’s version put in
cross-examination as sufficient evidence and by accepting it as the
more probable version.
Appeal upheld and matter remitted for a
hearing
de
novo
.
Coram: Waglay JP, Jappie and Murphy
AJJA
JUDGMENT
MURPHY AJA
[1]
This is an appeal against a judgment of the Labour Court (Everett AJ)
dismissing the appellants’ application to review
and set aside
a decision of the second respondent (“the Chairperson”)
in a disciplinary hearing discharging the first
respondent (“Kgopa”)
from charges of misconduct and in which it held that section
158(1)(g) and/or (h) of the Labour
Relations Act
[1]
(“LRA”) does not permit the appellants to review the
decisions of their own functionaries. The respondents do not oppose
the appeal.
[2]
The issue on appeal is whether the appellants (and the State more
broadly) have
locus standi
to review their own decisions under
section 158(1)(h) of the LRA.
[3]
On 7 April 2012, Kgopa was charged with four counts of misconduct,
including corruption. The charges stemmed from a series of
alleged
interactions with a member of the public (“Nonyane”) who
sought to lay a charge of fraud during January 2012.
It is alleged
that Kgopa had firstly advised Nonyane to open a case of robbery
instead of fraud because his involvement in the
alleged fraud
constituted a crime and secondly demanded R1500 to open the case.
[4]
A disciplinary hearing was held on 16 and 17 May 2012 at which Kgopa
pleaded not guilty to four counts of misconduct. The employer
led
three witnesses at the disciplinary hearing. Nonyane was the only
witness who could, and did, speak to the events of January
2012. He
testified that Kgopa had told him to change his charge and had
demanded R1500 to open a case of robbery. Kgopa’s
version put
to the employer’s witnesses was that the money deposited into
his account from Nonyane was in repayment for a
loan. Nonyane denied
this version. After the employer’s evidence, Kgopa’s
representative applied for a “discharge”.
[5]
The Chairperson granted the discharge on the basis that the evidence
presented was essentially the evidence of a single witness
who
together with the other witnesses had failed to give a good
impression. The Chairperson placed significant emphasis on the
balance of probabilities and stated:
‘“
The
balance of probabilities must be tested in all courts from here
upwards up to the constitutional court. And the requirements
from the
court to test these cases, the court would want to see if there is
fairness that table work on facts or that they work
on fabrication,
that they work on assumptions, perceptions and I must really tell you
that there is not enough to come and say
there is any balance to the
employer’s side more than to the employee’s side. And
therefore to call the employee so
that the employer can get more
balance into his side of the scope would probably not happen.”
Thus,
she engaged in a balancing exercise in relation to the evidence
before there was any evidence from Kgopa to weigh in the balance.
[6] On 19 December 2012, the
appellants instituted review proceedings in terms of section
158(1)(h) of the LRA in the Labour Court
against the Chairperson’s
ruling and sought orders reviewing and setting aside the decision
absolving Kgopa from giving evidence
in his own defence on the
charges preferred against him and referring the matter back either to
proceed
de novo
before another Chairperson or for the
disciplinary hearing to proceed on the basis that the application for
discharge at the close
of the employer case was refused.
[7] The appellants maintained that the
Chairperson applied the incorrect test in determining whether “to
grant absolution
from the instance”. Instead of determining
whether there was sufficient evidence on which a reasonable man might
find for
the employer, the chairperson balanced the probabilities of
the employer’s version against that of Kgopa’s version,
even though Kgopa had not testified. They also contended that the
Chairperson’s ruling was vitiated by an error of law because
a
significant portion of her ruling was based on adverse credibility
findings. As a consequence of these irregularities, and because
the
Chairperson’s decision constituted administrative action, the
appellants’ contended that the ruling stood to be
set aside on
the bases that it was grounded on an error law, unlawful;
unreasonable; procedurally unfair; and constituted a gross
irregularity.
[8] The review application sought to
review and set aside the Chairperson’s decision “to grant
absolution from the instance”
in Kgopa’s disciplinary
hearing. However, in fact, the Chairperson never granted absolution
from the instance. She dismissed
the charges against Kgopa, after
Kgopa’s representative applied for a discharge. Chairpersons
presiding in SAPS misconduct
disciplinary hearings are empowered to
grant a discharge in terms of the Regulations of the South African
Police. There was, therefore,
no ruling founded upon an absolution
from the instance to be reviewed.
[9] Without realising that the
Chairperson had actually discharged Kgopa, the Labour Court held that
absolution from the instance
is not appropriate in the context of
disciplinary enquiries. The error is understandable in that the
appellants had in their notice
of motion sought review of the assumed
decision to grant absolution. Be that as it may, the review
application was dismissed on
the basis that the appellants lacked
standing to review the decision of the Chairperson. The Labour Court
held:
‘
Section
158(1)(g) provides for the review of “any function provided in
this Act”. A disciplinary enquiry – other
than an enquiry
by arbitrator provided for in terms of section 188A – is
strictly not a function provided for in this Act.
And if it were it
would result in the outrageous situation that the conduct of
employers or chairpersons might be taken directly
on review in the
Labour Court, bypassing the conciliation and arbitration provisions
of the LRA.
Section
158(1)(h) provides for the review of “any decision taken or any
act performed by the State in its capacity as employer”.
This
provision exists to ensure fair treatment by the State towards it
employees and to avoid the abuse of State power. It does
not exist to
provide the State with an opportunity to review the functions of its
own functionaries who, when they perform their
functions, do so on
behalf of the State. The State’s attempt to review the
chairperson it appointed for bias in favour of
the first respondent,
is similarly absurd.’
[10]
The judgment, if correct, would as a general rule preclude the State
as employer from reviewing the decisions of its own functionaries
in
the context of erroneous rulings by disciplinary chairpersons
presiding over disciplinary hearings for misconduct. The judgment,
however, stands in contradiction with the decisions of this Court
which hold that a state functionary, such as the appellant, can
review the decisions of its own functionaries.
[11]
Section 158(1)(h) of the LRA provides that the Labour Court may
review any decision taken or any act performed by the State
in its
capacity as employer, on such grounds as are permissible in law. In
Hendricks
v Overstrand Municipality
[2]
,
this Court was invited to determine whether the Labour Court has the
power to review the decision of a presiding officer of a
disciplinary
hearing at the instance of the employer, where the employer is the
State. Relying on the decision of the Supreme Court
of Appeal in
Ntshangase
v MEC for Finance KZN
[3]
it held:
‘
The Labour Court has the power
under section 158(1)(h) to review the decision taken by a presiding
officer of a disciplinary hearing
on (i) the grounds listed in PAJA,
provided the decision constitutes administrative action; (ii) in
terms of the common law in
relation to domestic or contractual
disciplinary proceedings; or (iii) in accordance with the
constitutional requirements of the
principle of legality, such being
grounds permissible in law.’
[12] Thus, the law is settled. Section
158(1)(h) of the LRA empowers the Labour Court to review decisions of
chairpersons at disciplinary
hearings, at the instance of the
employer, in circumstances where the State is the employer.
Concomitantly, the State as employer
has the standing to institute
such review proceedings. Everett AJ’s finding that section
158(1)(h) “does not exist
to provide the State with an
opportunity to review the functions of its own functionaries who,
when they perform their functions,
do so on behalf of the State”,
is therefore wrong in law and stands to be set aside.
[13] However, the learned acting judge
was correct in finding (in effect) that the decision of the
chairperson was unreasonable
and illegal. As she stated, the whole
point of a disciplinary hearing is to provide an employee with an
opportunity to respond
to the allegations against him or her and to
weigh the probabilities to establish if misconduct has been committed
and what sanction
might be appropriate. It was unreasonable for the
Chairperson merely to have weighed the employer’s version
(which established
prima facie
misconduct) against the
employee’s version put to the witnesses in cross-examination.
The employee was required to testify
to rebut the
prima facie
case against him, or alternatively to close his case, in which event
the Chairperson would have been required to assess in accordance
with
the applicable rules of evidence whether the unanswered evidence
sufficiently established the misconduct. The Chairperson
erred and
acted unreasonably in treating the employee’s version put in
cross-examination as sufficient evidence and by accepting
it as the
more probable version.
[14] For those reasons, the matter
must be remitted to a disciplinary enquiry
de novo
. However,
the chairperson of the
de novo
hearing should be permitted to
admit into evidence the record of the proceedings before the second
respondent without recalling
the relevant witnesses unless any of the
parties on application seeks leave to do so.
[15] The following orders are made:
15.1 The appeal is upheld and the
judgment of the Labour Court is set aside.
15.2 The decision of the second
respondent dated 17 May 2012 is set aside.
15.3 The disciplinary proceedings
against the first respondent are remitted to the second applicant to
proceed
de novo
before another Chairperson who shall be
permitted to rely on the record of evidence before the second
respondent together with any
additional evidence adduced by the
parties before him or her.
_____________
JR Murphy AJA
I
agree
_____________
B Waglay JP
I
agree
______________
A Jappie AJA
APPEARANCES:
FOR
THE APPELLANT: Adv N Muvangua and Adv V Bruinders
Instructed
by: The state attorney
FOR
THE FIRST RESPONDENT: No appearance
[1]
Act 66 of 1995.
[2]
[2014] 12 BLLR 1170
(LAC) at para 29
[3]
Ntshangase
v MEC for Finance Kwazulu-Natal and Another
2010
(3) SA 201
(SCA).