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[2019] ZALAC 45
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Minister of Police and Others v Safety and Sectoral Bargaining Council and Others (JA112/2017) [2019] ZALAC 45; [2019] 10 BLLR 1125 (LAC) (13 June 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JA112/2017
In
the matter between:
MINISTER
OF POLICE
First
Appellant
NATIONAL
COMMISSIONER OF POLICE Second
Appellant
PROVINCIAL
COMMISSIONER OF POLICE Third
Appellant
and
SAFETY
AND SECTORAL BARGAINING COUNCIL
First
Respondent
P
H KIRSTEN
N.O. Second
Respondent
THABO
PATRICK
BONOKO Third
Respondent
Heard:
21 May 2019
Delivered:
13 June 2019
Summary:
Review of arbitration award – commissioner finding on
probabilities that employee guilty of misconduct- Court finding
that
award reasonable – Labour Court’s judgment set aside and
appeal upheld.
Coram:
Waglay JP, Murphy and Savage AJJA
Judgment
SAVAGE
AJA
Introduction
[1]
This appeal,
with the leave of this Court, is against the judgment and orders of
the Labour Court (Cele J) in terms of which the
late filing of a
review application was condoned and the award of the second
respondent (the arbitrator) was set aside on review
and replaced with
a finding that the dismissal of the third respondent, Mr Thabo
Patrick Bonoko, was substantively unfair.
[2]
The third
respondent was employed as a Constable in the South African Police
Service (SAPS). He was dismissed, together with his
colleague, Mr V K
Malubane, on 26 May 2011 for serious misconduct in attempting to
extort R100 000 from Mr Mxolisi Kali on
7 July 2010 between
18h00 and 21h00 at KwaThema in Springs, threatening to kidnap Mr
Kali’s family and threatening Mr Kali
with bodily harm. At the
internal disciplinary hearing, the evidence of Mr Malubane, a crew
member who had worked with Mr Bonoko
for a number of years, was that
Mr Bonoko was with him at the Kali’s home on the evening in
question. This version was not
disputed by Mr Bonoko at the
disciplinary hearing, where he elected not to testify. Both Mr Kali
and his wife testified regarding
Mr Bonoko’s role in the
misconduct and identified him at the hearing of the matter.
[3]
After the
internal appeals of both Mr Bonoko and Mr Malubane had failed, Mr
Bonoko referred an unfair dismissal dispute to the first
respondent,
the Safety and Security Sectoral Bargaining Council (SSSBC). Both Mr
Bonoko and Mr Malubane were arrested and charged
criminally but after
Mr and Mrs Kali only pointed out Mr Malubane at the identification
parade held, criminal charges against Mr
Bonoko were withdrawn.
Arbitration
and review
[4]
At the
arbitration hearing, Mr Kali testified that at about 19h00 on 7 July
2010, four men got out of the white marked police Volkswagen
Golf at
his home in KwaThema. Mr Kali has shortly returned home with his
daughter. Mr Malubane, who was identified as the driver
of the police
vehicle, tapped on the window of Mr Kali’s car, holding a cable
tie in his hand and said, “
we
are here to fetch you
”.
Mr Kali asked what the police were there for and Mr Malubane replied
“
you
are supposed to know
”.
He testified that the four policemen, of whom Mr Bonoko was one,
walked into the garage and then into his house. They took
cellphones
belonging to Mr Kali, his wife and daughter. Mr Malubane and Mr
Bonoko held his belt as they walked Mr Kali out of the
house and into
the police vehicle. According to Mr Kali, Mr Bonoko sat in the front
passenger seat of the vehicle and Mr Kali sat
at the back between two
other men. After they drove off Mr Bonoko told Mr Kali that they
wanted him to give them R100 000.
Mr Kali replied that he did
not have that kind of money but that he could give them R30 000
the next day, describing this
as “(a)
ctually
I was buying my life back
”.
He stated that the men threatened to kidnap his family and also
threatened him with bodily harm along the way.
[5]
Shortly
thereafter a police bakkie pulled up next to them to say that they
were looking for a white Toyota Corolla. A gun shot rang
out. Mr Kali
was asked if he had seen the vehicle and he said he had not, although
he had told his daughter about it as they had
driven home earlier. He
was then driven in the Golf to a dark area where Mr Malubane asked Mr
Bonoko “
do
we have all the equipment?
”
Mr Bonoko replied that he had everything. At that moment, the man on
the right-hand side of Mr Kali, who was wearing a grey
woollen cap,
got a phone call. This caused the four men to get out of the car,
leaving Mr Kali inside. They returned and drove
on, stopping behind a
truck near Modderbee prison. The men got out to talk to a man who had
got out of the truck. Mr Kali was told
to get out of the car. He
stated that the man sitting on his right side covered his eyes with
one hand and led him towards the
truck. Mr Kali testified that at
this point he “
saw
that it might be the last time I saw my life
”.
He assumed his eyes were covered as they did not want him to see the
registration number of the Golf. Mr Kali was given
back his phone and
left at the side of the road. His wife and daughters’
cellphones were not returned to him.
[6]
Shortly
thereafter a person called Mr Kali and then came to fetch him. On the
way home he got a call from the police who said they
were driving in
the direction they were going and that they must stop. The car was
stopped and Mr Kali got into a grey Quantum
and was driven back to
his home by the police. When he got home, he heard that there had
been a shooting outside his house. Although
no one was injured his
family was frightened. He later went to the KwaThema police station
to open a case relating to what had
happened to him on the day.
[7]
When he was
later called with his wife to an identification parade, Mr Kali
explained that there were about 20 people in the parade
and that he
was only able to identify Mr Malubane who was the driver of the
vehicle. He did not identify Mr Bonoko but testified
that it was Mr
Bonoko who was present at his house, saying that he would “
not
just come here and pin point somebody who I never saw
”.
[8]
Mrs Veronica
Kali saw Mr Bonoko for the first time at her home and that “
he
knows the truth…that was the first time that I saw him
.”
She walked outside and saw that the four policemen were driving a
marked Golf 5. They said they had come to fetch her husband.
Outside
she was pushed and one of the men said, “
take
this bitch and put her in the house”.
A
man who she later identified as Mr Khoza pushed her and she got hurt.
She was then held tightly and at this point she saw Mr Bonoko
get
into the Golf. She accepted that she did not identify Mr Bonoko at
the identification parade but confirmed that it was Mr Bonoko
who had
been there. There was no dispute that from police vehicle records of
the day the driver of the vehicle was Mr Malubane.
A statement was
taken from Mr Malubane who identified Mr Bonoko as the colleague who
was with him at the Kali’s house.
[9]
In his
evidence, Mr Malubane stated that he received information from an
informer that Mr Kali was dealing in platinum. He was on
his way home
at the time and travelled with Mr Bonoko to KwaThema to investigate
in the marked police vehicle driven by him. The
informer was
collected at an Engen garage and the three men went to Mr Kali’s
house. As they arrived there Mr Kali had just
pulled up in his car
with his daughter. Mr Malubane got out and identified himself,
explaining why they were there. Mr Bonoko also
identified himself. Mr
Kali told them that he had dealt with platinum in the past but no
longer does so and that if they wanted
to search his house they
could. He indicated that he could provide the names of people who
were dealing in platinum. When they
went to the police vehicle for
him to provide the names Mr Kali said he did not want his neighbours
to see the police there and
got into the car. Mr Bonoko sat with Mr
Kali at the back, while Mr Malubane was alone in the front. Shortly
thereafter they met
up with police officers in a van.
[10]
After Mr Kali
was dropped off, Mr Bonoko sat in the front passenger seat of the
vehicle. Mr Bonoko took Mr Malubane’s private
vehicle and drove
himself home to Tembisa. It was put to Mr Malubane that Mr Malubane
dropped him off at home and that he had left
for his home when he got
the informer’s phone call. Mr Malubane agreed that he dropped
Mr Bonoko at his home but after they
had gone to the Kali’s
house. He then stated that he could not remember if he gave Mr Bonoko
a lift home or not. Mr Khoza,
who was arrested after having been
pointed out by Mr Kali at court, was also on trial with him in the
criminal matter but according
to Mr Malubane was not at the Kali’s
house.
[11]
Mr Bonoko’s
version was that Mr Malubane dropped him at his home in Tembisa after
work on 7 July 2010 at around 17h30 and
that from 18h30 until 20h00
he went to a choir practice at his church, where he is not only a
choir member but also the conductor
of the choir. He denied having
been at the Kali’s house. Mr K M Modiba testified for Mr Bonoko
that choir practices are held
on Monday, Wednesday, Thursday and
Friday unless the choir has to sing on a weekend in which case they
practice for the whole week.
When it was apparent that the attendance
register had no entry for Monday, 5 July 2010, Mr Modiba stated that
the choir did not
practice on a Monday unless there was an event over
the weekend. When it was put to him that there was no entry for
Thursday, 9
July 2010, Mr Modiba stated that the choir rehearsed if
there had a show on the weekend. Mr Modiba testified that he too was
the
conductor of the choir. Mr Modiba claimed he wrote entries in the
attendance register and then conceded, when different handwriting
was
apparent from the register, that others would make entries on his
behalf.
[12]
The arbitrator
found there to be no reason why Mr Malubane would falsely implicate
Mr Bonoko in the matter and noted that the evidence
of Mr and Mrs
Kali as to how the misconduct was committed was not placed in
dispute. Despite the discrepancies that existed between
aspects of
the evidence of Mr Malubane and Mr and Mrs Kali these were not of
such a serious nature and all three witnesses had
identified Mr
Bonoko as having been at the Kali’s house. It was accepted that
the value of the Kali’s dock identification
of Mr Bonoko was
limited and could not be accepted without corroborating evidence.
That corroborating evidence was to be found
in Mr Malubane’s
testimony.
[13]
The arbitrator
rejected Mr Bonoko’s alibi that he was at choir practice on the
night in question as unconvincing, noting that
this alibi was not
relied on at the disciplinary hearing, the choir register had a
number of unexplained changes and did not record
when Mr Bonoko
attended. Furthermore, the excuse was rejected that the reason he did
not challenge the version put on his behalf
at the disciplinary
hearing by his representative was because he was sleeping, that he
did not understand English, that his representative,
in fact, did not
represent him although he had not stated this at the hearing, that he
was not given a chance to speak and that
he was not made aware that
he was attending a disciplinary hearing. None of this was found to
excuse the failure to put up the
alibi or to dispute the evidence of
Mr Malubane during the disciplinary hearing. The arbitrator found
that it had been proven on
a balance of probabilities that Mr Bonoko
had participated in the misconduct and that his conduct was serious
enough to warrant
dismissal. In the circumstances, it was found that
the dismissal was both procedurally and substantively fair.
[14]
Aggrieved with
the outcome of the arbitration, Mr Bonoko sought the review of the
arbitration award by the Labour Court in terms
of section 158(1)(g)
of the Labour Relations Act 66 of 1995 (the LRA). Condonation was
granted for his 10-day delay in filing of
the review application and
only the substantive fairness of the dismissal was in issue before
the Labour Court.
[15]
While
accepting that dismissal would have been warranted for such serious
misconduct, the Labour Court had difficulty in understanding
how the
evidence of Mr Malubane had been accepted by the arbitrator despite
its serious discrepancies. These discrepancies related
to issues such
as Mr Malubane’s recall of how many people were in the car,
where he was when he received the information
from the informer and
whether he had dropped Mr Bonoko at home on the day. This led the
Court to conclude that Mr Malubane may
not have been honest in his
testimony, knowing that he faced criminal charges which could have
provided a motive for him to lie.
His evidence was found by the Court
to be so improbable that it was not necessary to ask why he would
have lied. The arbitration
award was accordingly set aside and
substituted with an order that Mr Bonoko be retrospectively
reinstated into his employment
with no loss of income or benefits.
Each party was ordered to pay its own costs.
Submissions
on appeal
[16]
On
appeal, it was contended for the appellants that the Labour Court had
erred in adopting a piecemeal approach to the evidence,
ignoring
material evidence before it that indicated that Mr Bonoko was at the
Kali’s premises and therefore had committed
the misconduct in
question, which evidence was corroborated by the Kali’s. It was
argued that at the disciplinary hearing,
Mr Bonoko had not challenged
the version that he and Mr Malubane were at the Kali’s house on
the day in question and his
excuses for not doing so were implausible
and stood to be rejected. The alibi relied upon by Mr Bonoko at
arbitration was not raised
at the disciplinary hearing and the choir
register put up contained a number of contradictions, as did the
evidence of choir conductor,
Mr Modiba. Despite the inconsistencies
that did arise there was no motive was advanced as to why Mr Malubane
would lie so as to
falsely implicate Mr Bonoko. The five different
reasons why he had not objected to the evidence which placed him on
the scene at
the Kali’s house were implausible. The Labour
Court, it was submitted, failed to have regard to a conspectus of all
the evidence
and took a compartmentalised and fragmented approach to
the evidence.
[1]
Consequently,
the Court erred in not having regard to the inconsistencies in the
evidence of Mr Modiba but having regard to those
of Mr Malubane
alone; and in failing to examine the belated alibi as a postscript.
[17]
Although it
was submitted for Mr Bonoko in written argument that in issue in this
appeal is whether an application for condonation
is appealable, this
was not pursued in oral argument. It was argued that the arbitrator
should not have concerned himself with
what transpired during a
disciplinary hearing and that the discrepancies which arose in the
evidence of the Kali’s and Mr
Malubane relating to the number
of people in the car, who was with Mr Malubane when he was driving
home and where Mr Bonoko sat
in the car were such that they made the
evidence for the appellants unreliable. Furthermore, to the extent
that Mr Modiba’s
evidence was of poor quality and contained
contradictions, so did the evidence of Mr Malubane. Consequently, the
judgment and orders
of the Labour Court did not fall to be set aside
on appeal and the appeal, it was submitted, should fail.
Evaluation
[18]
In
making credibility findings, the arbitrator had “
the
advantage of judging the credibility of witnesses by observing their
deportment in the witness-box”.
[2]
His
task was to
consider
the evidence not in isolation but in light of the proven facts and
the probabilities of the matter;
[3]
and,
having regard to it in its totality,
to
“…
select
a conclusion which seems to be the more natural, or plausible,
conclusion from amongst several conceivable ones, even though
that
conclusion not be the only reasonable one”.
[4]
[19]
The
arbitrator found there to be no motive shown why Mr Malubane would
falsely implicate Mr Bonoko. The fact that nothing was put
up by Mr
Bonoko to suggest why Mr Malubane would have done so, coupled with
his failure to dispute Mr Malubane’s evidence
against him at
the disciplinary hearing, were relevant and material considerations
properly taken into account by the arbitrator
when arriving at such a
conclusion. In
National
Union of Mineworkers and another v CCMA
[5]
this
Court noted that “(i)
t
is quite permissible to draw an inculpatory inference from the
weakness of a respondent’s evidence
”.
The arbitrator was entitled to draw such an inference against Mr
Bonoko given the absence of evidence as to motive against
Mr
Malubane; his failure to provide a reasonable or credible explanation
for his failure to object to evidence led at the disciplinary
hearing
or to Mr Malubane’s version there, the failure to contradict
the version advanced on his behalf by his legal representative
at the
disciplinary hearing, his belated alibi raised and the material
discrepancies which arose between his evidence and that
of Mr Modiba.
[20]
On
review, it fell to the
Labour
Court to determine whether the arbitrator had committed a
reviewable
error or irregularity and whether a decision had been made by him
which
a
reasonable decision-maker could not reach
on
the material before him.
[6]
This
required regard to be had to the totality of the evidence before the
arbitrator.
[21]
The
Labour Court’s finding that the arbitrator erred in failing to
reject Mr Malubane’s evidence given its discrepancies
was
unduly narrow and failed to attach appropriate weight to the fact
that Mr Malubane’s version was corroborated in material
respects by the evidence of both Mr and Mrs Kali. In order for Mr
Malubane’s evidence to be rejected in its entirety, as
the
Labour Court did, an inference had to be drawn that given some
discrepancies in his evidence the totality of it fell to be
rejected
as false. Our courts have expressly rejected the maxim
falsum
in uno falsum in omnibus
[7]
with
the result that it is usually only the evidence given by a witness
which has been shown to be false which is rejected and not
the
evidence in its entirety.
[8]
[22]
The arbitrator
accepted that even if Mr Malubane had erred in his recall of matters
such as whether Mr Bonoko was dropped off at
his house, where Mr
Bonoko sat in the vehicle when Mr Kali was in the car and the
circumstances of the phone call from the informer,
his version that
Mr Bonoko was at the Kali’s house was truthful and was
corroborated by the Kali’s. Importantly, the
arbitrator found
it is difficult to understand what Mr Malubane, Mr Kali or Mrs Kali
would have to gain from falsely implicating
Mr Bonoko in the matter.
The evidence of Mr Malubane that he was with Mr Bonoko on the scene,
that of Mr and Mrs Kali as to the
circumstances of the misconduct and
Mr Kali’s detailed account of his ordeal was accepted by the
arbitrator as the most probable,
readily apparent and plausible
version of events. In finding as much the decision of the arbitrator
was not one that a reasonable
decision-maker could not reach
on the material
before him. No
reviewable
irregularity was shown to exist warranting the setting aside of the
arbitration award and the Labour Court erred in finding
differently.
For these reasons, the appeal must succeed.
[23]
Both parties
sought costs in the event of their success on appeal. Having regard
to the fact that Mr Bonoko is an individual litigant
who sought to
defend a judgment of the Labour Court in his favour, and with regard
had to considerations of law and fairness, the
view I take is that
there should be no order as to costs.
Order
[24]
For these
reasons, the following order is made:
1.
The appeal is
upheld.
2.
The order of
the Labour Court is set aside and replaced as follows:
“
1.
Condonation
for the late filing of the review application is granted.
2.
The
review application is dismissed
.”
________________________
Savage
AJA
Waglay
JP and Murphy AJA agree.
APPEARANCES:
FOR
APPELLANTS:
S B Nhlapo
Instructed
by the State Attorney
FOR
RESPONDENT: S
N Molele
of S N Molele Incorporate
[1]
S
v Trainor
2003
(1) SACR 35
(SCA) at para 9.
[2]
R
v
Abel
1948
(1) SA 654
(AD)
at 659; see too
Mutual
Holdings (Bermuda) Limited and Others v Diane Hendricks and
Others
[2013]
UKPC 13
at
para 28.
[3]
Santam
Bpk v Biddulph
2004
(5) SA 586
(A)
at 589F-G with reference to
Protea
Assurance Co Ltd v Casey
1970
(2) SA 643
(A)
at 648D-E and
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979
(1) SA 621
(A) at 623H-624A.
[4]
Ocean
Accident and Guarantee Corporation Ltd v Koc
h
1963
(4) SA 147
(A) at 159 B-D with reference to
Govan
v Skidmore
1952
(1) SA 732
(N) at 734.
[5]
(2015) 36 ILJ 2038 (LAC).
[6]
Section
145(2) of the Labour Relations Act 66 of 1995 (the LRA);
Herholdt
v Nedbank
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA) at para 25;
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2015]
1 BLLR 50
(LAC)
at para 33;
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[
2007]
ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28
ILJ 2405 (CC)
at
para 78 and 79.
[7]
R
v Gumede
1949
(3) SA 749
(A) at 746;
S
v Mkhonto
1971 (2) SA 319
(A) at 323A.
[8]
S
v Oosthuizen
1982
(3) SA 571
(T).