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[2019] ZALAC 66
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South African Police Service v Magwaxaza and Others (PA10/2017) [2019] ZALAC 66; [2020] 2 BLLR 151 (LAC); (2020) 41 ILJ 408 (LAC) (5 November 2019)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, PORT ELIZABETH
Case no: PA 10/2017
In the matter between:
SOUTH AFRICAN POLICE
SERVICE

Appellant
and
ANELE
MAGWAXAZA
First
Respondent
M.A.
NOZIGQWABA

Second Respondent
SAFETY AND
SECURITYSECTORAL
BARGAINING
COUNCIL

Third Respondent
Heard:
18 September 2019
Delivered:
05 November 2019
Summary: Appeal-
review of arbitration award.
Coram: Waglay JP,
Coppin JA and Kathree-Setiloane AJA
JUDGMENT
COPPIN
JA
[1]
This is an appeal against an order of the Labour Court (Coetzee AJ)
dismissing an application
brought by the appellant (“the SAPS”)
to review and set aside an award of the second respondent (“the
arbitrator”)
in favour of the first respondent (“the
employee”). Leave to appeal to this Court was granted on
petition.
[2]
The employee, a sergeant, employed by the SAPS since about 1991, was
dismissed after
being found guilty at a disciplinary enquiry of
shooting and killing a civilian with his service firearm. The
arbitrator found
that his dismissal was substantively unfair and
ordered his retrospective reinstatement with full back pay. The
Labour Court found
that the arbitrator’s award fell within the
bounds of reasonableness and, accordingly, dismissed the SAPS’
review application.
The SAPS argued on appeal that the arbitrator and
the Labour Court were wrong.
[3]
At the outset, the SAPS applied for the reinstatement of its appeal
and for condonation.
The applications were opposed by the employee.
[4]
In respect of the merits, the main issues on appeal are whether the
employee could
reasonably have been found guilty of misconduct, its
exact nature, and whether the sanction of dismissal was appropriate
in the
circumstances.
[5]
I deal firstly with the issue of condonation, then proceed to give a
brief background
of the facts and, lastly, with the merits of the
appeal.
Condonation
[6]
The SAPS, firstly, sought condonation for the late filing of its
notice of appeal
and the appeal record, the grant of which will
result in the reinstatement of the appeal. The application was
opposed by the employee.
The SAPS, secondly, sought to introduce into
the record copies of extracts of the arbitrator’s bench-book
notes, which are
in manuscript, with their transcriptions, and also
sought condonation for their late filing. The employee’s legal
representative
indicated that he was also objecting to the grant of
that application.
[7]
The gist of the employee’s opposition to the condonation
applications turned
on the time it took SAPS to lodge the necessary
documents. In essence, it was submitted on his behalf that there was
a clear lack
of diligence on the part of the State Attorney in that
regard and the employee was prejudiced by the long delays because he
was
unable to work and provide for his family. His legal
representative further submitted that the employee’s rights as
a breadwinner
had to be protected by refusing the applications for
condonation.
[8]
It is trite that condonation is not for the taking and that the
applicant for such
relief has to make out a proper case for it to be
granted. Good, or sufficient, cause must be shown. This not only
involves giving
a full explanation for the delay, but also showing
that the main process (in this instance the appeal) has reasonable
prospects
of success. Generally, a slight delay and a good
explanation for the delay could compensate for weak prospects of
success, and
good prospects could make up for a long delay. But the
interests of justice are paramount.
[1]
[9]
The SAPS was supposed to deliver its notice of appeal within 15 days
after leave to
appeal had been granted on petition on 30 November
2017. Hence it had to deliver its notice by no later than 21 December
2017.
But it only did so some months later. Similarly, the record was
to have been delivered within 60 days, i.e., by 20 February 2018.
But
the SAPS only delivered it on 24 October 2018. These delays are
indeed long.
[10]
In support of the main application for condonation, which was filed
on 21 May 2018, the delays
are explained extensively. Part of the
delay was caused by the unavailability of the attorney and counsel.
By about 31 January
2018, a draft record had been compiled by the
State Attorney using documents in the office file, and was submitted
to ADS in Cape
Town, a service provider that had been engaged to
prepare the record. ADS, however, indicated that certain further
documents were
required, including the SAPS’ heads of argument.
After seeking clarification from ADS, a copy of the heads of argument
which
did not have to be part of the record, but for ADS’
insistence, was furnished to them on 6 February 2018.
[11]
Further delays were caused by a host of other factors or
circumstances, including demands by
ADS for more documents,
difficulties accessing the preliminary record compiled by ADS, the
latter’s request for yet more
(unnecessary) documents, such as
the application for leave to appeal, finalisation of the record,
including the cross – referencing,
and difficulties with
tracing the court file. The court file was eventually found on 7
March 2018. There were yet further delays
caused by ADS in finalising
the record after the application for leave to appeal, which had been
belatedly requested by them on
6 April 2018, had been sent to them.
Subsequently, there were yet further requests by ADS for additional
documents (also not relevant),
such as a copy of the charge sheet in
the disciplinary hearing.
[12]
The delays were compounded by the State Attorney’s erroneous
impression that the filing
of a notice of appeal was not necessary
where leave to appeal was granted by this Court on petition. It is
only after counsel’s
advice had been sought that such a notice
was prepared. Yet further delays were caused by the unavailability of
the appellant’s
attorney due to an unfortunate family
bereavement.
[13]
According to Ms Leigh Jonas, the attorney, when an attempt was made
by the State Attorney to
file the record on 9 May 2018, the Registrar
of the Labour Court refused to accept the record and insisted that it
be accompanied
by a substantive condonation application. The process
of engaging counsel and drafting the condonation application led to
further
delay. The application was eventually filed on 21 May 2018.
An attempt was made to file the record at the same time, but the
State
Attorney was advised by the office of the Registrar of the
Labour Court that the record would not be accepted until the
reinstatement
application had been finalised. This was obviously
wrong advice, but according to Ms Jonas, the State Attorney accepted
it since
it came from the Registrar’s office.
[14]
It is only on 12 October 2018, after Ms Jonas had enquired about the
reinstatement application
that she was advised that it would be heard
together with the appeal. This was after the Registrar’s office
in Port Elizabeth
had consulted the Registrar in Johannesburg
concerning the filing of the record. The record was eventually filed
on 24 October
2018.
[15]
It is apparent from the explanation furnished that there were delays
at various junctures due
to a variety of causes and that all of the
delay was not due to the fault of the State Attorney. A sizeable
portion of the delay
was due to the difficulties it experienced in
the compilation and preparation of the record. The requests of ADS,
the compiler,
were oftentimes for documents which the State Attorney
should have known were irrelevant, and its belated request for an
important
document, such as the notice of appeal, and the attorney’s
ignorance of its importance, further complicated matters.
[16]
I am satisfied that the respondent had adequate notice of the main
application for condonation
and that he has had sufficient
opportunity to file affidavits in opposition thereto, but has not
done so. Mr Thobani Evidence Jalmeni,
an administration officer
employed by the SAPS and stationed at its provincial Head Office, in
Zwelithsha, states in an affidavit
that is part of the record of the
condonation applications, that on 19 December he, personally,
attended at the employee’s
place of residence, and personally
served the record of appeal, the appellant’s heads of argument,
practice note and the
application for condonation (including a
supplementary affidavit) on the employee, but the employee refused to
sign for them. It
is further implicit from the contents of the heads
of argument filed on behalf of the employee, that the employee and
his legal
representative were in possession of those documents,
making it possible for them to make submissions concerning their
contents.
[17]
The employee’s heads of argument and practice note (apparently
drawn by the employee’s
legal representative) were filed on 31
January 2019. On 22 February 2019, the employee filed a further set
of heads, apparently
drafted by him (although they bear the date 28
January 2019). In those heads, the employee,
inter alia
,
acknowledges that he got to know of the application for condonation
on 12 October 2018, and that Mr Jalmeni came to his place
of
residence to serve the documents on him, but he denies refusing to
sign for them. He alleges that he told Mr Jalmeni to serve
the
documents at the offices of Legal Aid in King William’s Town,
where he had a legal representative. He does not allege
that the
documents were not served as per his request. It is apparent from his
heads and the attachments to those heads that there
was service on
the Legal Aid offices and that they were aware of the application as
early as October 2018. In any event, the employee
has furnished no
evidence by his former representative at Legal Aid confirming his
version. He also does not explain when Legal
Aid ceased to represent
him, and when and how he came to appoint his new legal
representative, Mr Makubalo; and how the drafter
of his heads of
argument (two sets), if it was not him, came to have knowledge of the
contents of condonation application.
[18]
There is also no merit in the point raised by the employee, or on his
behalf, that the application
for condonation was defective, because
it was deposed to by Ms Jonas, instead of the SAPS. It is apparent
from Ms Jonas’s
affidavit that she was the attorney at the
State Attorney who was in charge of the matter and that she had
personal knowledge of
the facts. It was most appropriate for her to
depose to the main affidavit.
[19]
The explanation for the delay, although full, on its own, may not
have been enough to pass muster.
Nevertheless, because this matter is
in the public interest and the SAPS’ prospects of success are
excellent (as will be
discussed in due course) this compensates for
deficiencies in the explanation. The grant of the necessary
condonation is clearly
justified in the interests of justice as will
become clear in due course when the merits are discussed.
[20]
The application to introduce copies of extracts from the arbitrator’s
bench notes was filed
with the Labour Court, according to the date
stamp on the document, on 6 December 2018. An index for that
application (together
with a copy of the application) was served on
the employee’s attorneys on 11 September 2019.
[21]
In the affidavit filed in support of that application, which is also
deposed to by Ms Jonas,
she explains that counsel for the appellant,
during the course of preparing its heads of argument, became aware
that portions of
the arbitration transcript were missing from the
appeal record, in particular, the final part of the employee’s
evidence
in chief; the first part and the last part of his evidence
given under cross-examination; and the evidence of Lt. Col. Hakula.
The arbitrator’s detailed bench notes, which were before the
Labour Court, capture those missing portions. They were, however,
not
included in the appeal record at the outset, because Ms Jonas assumed
that the record was complete.
[22]
The importance of the notes is obvious. If the record had been
complete otherwise, then their
inclusion would not have been strictly
necessary. But since the record is otherwise lacking, their inclusion
in the record is vital.
Neither the employee, in his submissions, nor
his legal representative, alleged that the notes were not a true
record of the evidence
that had been given at the arbitration. On the
contrary, their accuracy was accepted and the opposition to their
inclusion centred
on the delay issue, which is dealt with above. In
addition, the employee did not challenge the averments of Ms Jonas,
including,
those concerning the accuracy of the notes, and did not
seek a postponement, or leave, to file an opposing affidavit.
[23]
Considered in light of all the facts, the late filing of the notes is
condoned in the interests
of justice.
The background facts
[24]
It is common cause that on 24 December 2011, the employee, who was
off-duty at the time, but
armed with his official firearm, attended a
traditional ceremony in his local community in Zinyoka, King
William’s Town.
There, he got involved in an argument with the
deceased and others. The argument appears to have been about the
spillage of traditional
beer at another ceremony held at the
deceased’s sister’s house the previous day, i.e. on 23
December 2011.
[25]
The deceased’s sister, Ms Noquaka, who was also at this other
venue on 24 November, intervened
when she was made aware of the
argument and left the ceremony with the deceased. According to the
deceased’s girlfriend,
Ms Masela, who was also at the ceremony,
when the deceased was leaving the employee said to him “I’m
going to get you”.
And according to Ms Noquaka, the deceased
had told the employee to “voetsek”. This evidence was not
challenged in cross-examination.
[26]
At about 20h30 that evening, the deceased was found lying prostrate
on the road, close to where
he lived, after he had been fatally shot
in the stomach, at close range, by the employee. The deceased was
pronounced dead on arrival
at the hospital.
[27]
It is common cause that after firing the fatal shot, the employee
walked from the scene to his
house, which was close by, and remained
there until he was arrested by the police in the early hours of the
next morning.
[28]
At his disciplinary hearing the employee, who admitted fatally
wounding the deceased, maintained
that he was acting in self-defence
after perceiving that the deceased, who, on his version, had
confronted and reminded him of
what had happened at the ceremony
earlier, was about to stab him with an object which he, subsequently,
thought was a knife. According
to the employee he also feared being
attacked by others at that stage, even though he only saw the
deceased.
[29]
Ms Masela testified that she witnessed the shooting incident from a
vantage point about five
metres away, where she had hidden herself.
The deceased approached the employee in the road and enquired after
the whereabouts
of Ms Masela. The employee did not answer the
deceased. The deceased was about 2 m away from the employee when the
shot went off.
She heard the deceased ask the employee “Soso’s
father why are you shooting me” (Soso is the employee’s

child). There was no scuffle before the shooting and the deceased was
unarmed. Immediately after the shooting, the employee left
the scene.
Ms Masela approached and found the deceased lying prostrate and
unresponsive. The deceased had nothing in his hands
and there was no
knife on the scene. Ms Noquaka also came to the scene and the
deceased was taken to hospital where he was declared
dead on arrival.
This evidence was also not challenged under cross-examination.
[30]
Const. Ruiters, who arrested the employee, testified that he smelt of
alcohol at the time, but
could not say if he was drunk. Ms Masela
testified that she did not know whether the employee was under the
influence of alcohol
at the traditional ceremony, and Ms Noquaka
testified that she saw him drinking beer, but could not say how much.
The employee
denied that he drank alcohol on that day.
[31]
The employee testified at the arbitration that, immediately after he
shot the deceased, he moved
10 meters from the scene and phoned a
policeman to report the incident. He was told by that person that he
should go home and wait
there, which he did. As he was a suspect, he
believed that it was not his duty to call an ambulance. This version
was proved to
be false as he had given a different version at the
disciplinary inquiry. There, he had testified that he went straight
home after
the shooting and had not reported the incident.
The Disciplinary hearing
[32]
The SAPS charged the employee with four counts of misconduct arising
from his killing of the
deceased. After the employer had presented
evidence and the employee had testified and presented evidence, he
was found guilty
of three of the charges, the main one being charge
2, which is discussed later. The sanction of dismissal was imposed.
The employee’s
appeal to the Provincial Commissioner of Police
was unsuccessful.
The Arbitration Award
[33]
The employee referred an unfair dismissal dispute to third respondent
(“the SSSBC”).
At the arbitration, the employee gave
evidence, and called Lt. Col. Hakula to establish that the employee’s
reinstatement
to the SAPS would not be intolerable.
[34]
The arbitrator rejected the employee’s defence. He stated in
his award: “…
The applicant pleads that he acted in
self-defence when he shot the deceased and therefore his act was
justified and cannot be
said to be murder. He testified that the
deceased drew a knife and said they should continue with what they
had started. This testimony
contradicted what he said during the
disciplinary hearing. I am not convinced on whether the applicant saw
exactly a knife carried
by the deceased before he shot him.…
When the applicant met the deceased he unreasonably thought that he
had come to attack
him, since he had uttered swear words to him at
the ceremony…”.
[35]
Instead, the arbitrator found that the employee had been negligent in
causing the death of the
deceased and was therefore guilty of
culpable homicide. The arbitrator states in the award: “…
The applicant acted
out of paranoia rather than from a genuine attack
from the deceased. He thought that there was an attack imminent on
his life whereas
there was none. He acted contrary to what a
reasonable man would have done. The applicant shot the deceased in
his stomach, and
this was indicative of the fact that he harboured no
intention to kill the deceased. There was no clearly established
motive of
(
sic
) killing the deceased. What the applicant could
at least be found guilty of was culpable homicide (negligent killing
of a human
being) because he should have been certain that there was
an imminent and real danger to his life. He thought there was whereas

in actual fact there was no imminent danger. The applicant is
therefore not guilty of murder.”
[36]
It is apparent from the passage quoted that the arbitrator found that
the employee was not guilty
of murder and he says that this is so,
firstly, because he had shot the deceased in the stomach, and,
secondly, because it was
not clearly established that he had a motive
for killing the deceased. The finding of negligence was purely on the
basis that the
employee had made a mistake about there being an
imminent and real danger to his life.
[37]
Having made those findings, the arbitrator seemingly reasoned that
the employee’s dismissal
was unfair because he was not guilty
of murder, and proceeded to find that reinstatement with full back
pay was the appropriate
(“fair”) remedy. In coming to
this conclusion, the arbitrator essentially found that there was no
substantial evidence
that the relationship of trust between the
applicant and the SAPS had broken down. The arbitrator further
reasoned that the offence
was committed while the employee was off
duty, and that his commander Lt Col Hakula, who testified on his
behalf at the arbitration,
had confirmed that the employee was a
disciplined member who had carried out his duties satisfactorily.
And, further, that the
employee had a clean disciplinary record and
long service which should count in favour of him being reinstated.
The Labour Court
[38]
Essentially, the Labour Court found that the arbitrator had
reasonably arrived at the conclusion
that the employee was not guilty
of murder, but of culpable homicide; that the evidence of Ms Masela
“does not turn culpable
homicide into murder”; and that
there was no other credible evidence, apart from that of the
employee, concerning the intention
to kill the deceased, or the lack
thereof. The Labour Court further concluded that the SAPS did not
prove that the employee had
the intention to kill the deceased; that
it was for them to show that the employee had the requisite intent,
or that his denial
that he had such intent, was a lie.
Discussion
[39]
There is merit in the argument made on behalf of the SAPS that both
the arbitrator and the Labour
Court had adopted an unduly formalistic
approach and had made the cardinal mistake of wrongly focusing the
enquiry on whether it
had been proved that the employee had murdered
the deceased, as if it was a criminal trial.
[40]
The true enquiry had to be about determining, in a manner which was
not unduly formalistic, whether
the employee’s dismissal was
fair, taking into account the allegations made against the employee
and the standard of conduct
required of him.
[2]
The approach of the arbitrator, on its own, constituted a gross
irregularity that justified a review of the award.
[41]
The arbitrator let the employee off, scot-free, with “compensation”
in the form of
full back pay, despite having found that he had
unjustifiably killed a civilian. This conclusion is clearly
incongruous, unreasonable,
and was due to the approach adopted by the
arbitrator.
[42]
It seems implicit in the arbitrator’s reasoning that the fact
that the charges did not
(at least expressly) mention the crime of
culpable homicide, but murder, meant that the charge(s) against the
employee had not
been proved and, therefore, no sanction was
justified. This was not only unreasonable, but unjustified in light
of the following.
On the assumption that there was a charge of
murder, in disciplinary proceedings there is no requirement for
competent verdicts
to be mentioned in the charge sheet, and in the
absence of prejudice an employee may be found guilty of the offence
that is a competent
verdict.
[3]
[43]
In
Mashigo
v SAPS,
[4]
this Court referred with approval to what is stated in
Woolworths
v Commission for Conciliation Mediation and Arbitration and
Others
[5]
,
namely, (quoting
Le
Roux and Van Niekerk
[6]
)
:
“The principle in such cases is that provided a workplace
standard has been contravened, which the employee knew (or reasonably

should have known) could form the basis for discipline, and no
significant prejudice flowed from the incorrect characterisation,
an
appropriate disciplinary sanction may be imposed. It will be enough
if the employee is informed that the disciplinary enquiry
arose out
of the fact that on a certain date, time and place he is alleged to
have acted wrongfully or in breach of the applicable
rules or
standards.”
[7]
[44]
Properly construed, the essence of charge 2 was not murder. It was
alleged that the employee
was guilty of contravening Regulation 20
(z) of the SAPS Regulations – 2006, read with
section 120
(3),
(a), (b) and (c) of the
Firearms Control Act 3 of 2000
in that he had
“committed a common law or statutory offence, to wit, murder”
of the deceased. Thus, the essence was
about him having committed a
common law or statutory offence using his official firearm. Since it
was found that this offence had
been committed by the employee with
his official firearm he could not have been let-off, scot-free. There
had to be a sanction.
[45]
In any event, assuming murder had to be proved, both the arbitrator
and the Labour Court were
wrong in finding that the requisite
intention could only be proved by direct evidence. The arbitrator was
further wrong and unreasonable
in concluding that in order to prove
such intention clear proof of motive was necessary, or that it was
lacking.
[46]
The fact that the employee shot the deceased in the stomach (abdomen)
and not in the legs does
not count in his favour. Instead it is
indicative of recklessness on his part. It is an area where vital
organs are situated. As
a policeman, the employee was trained in the
handling of firearms, which could easily produce lethal results, or
serious harm.
Given the distance between the employee and the
deceased at the time the employee shot (about 2 meters), the area of
the body he
aimed or shot at, and all the other factors, it cannot be
said that he did not foresee the possibility that the shooting may
result
in the death of the deceased. And that by nevertheless
shooting, he had reconciled himself to that possibility, or that he
was
reckless as to whether that result might ensue. Considering all
of the evidence properly before the arbitrator, that is the least

that a reasonable arbitrator would have found.
The sanction
[47]
On the assumption that the finding of the arbitrator, that the
employee was guilty of negligently
killing the deceased, falls within
the band of findings a reasonable arbitrator would have made (which I
do not find), he nevertheless
committed an irregularity in not
concluding, in those circumstances, that the employee had committed
misconduct and, thereafter,
considering what an appropriate sanction
for that misconduct would be, or would have been.
[48]
Even
if the employee had only been found guilty of culpable homicide, the
arbitrator’s decision to reinstate him, notwithstanding
such
conviction, was unreasonable. Even though the SAPS did not lead any
evidence to prove that reinstatement would be intolerable,
this is
clearly implicit given the egregious nature of the misconduct and the
circumstances in which it was committed,
[8]
including the fact that police are to protect and secure the
inhabitants of this country and uphold the law and not to,
unjustifiably,
cause harm to them through unlawful acts.
[9]
[49]
Lt. Col. Hakula’s evidence did not establish that the
employee’s reinstatement would
not be intolerable. It is not
only clear from his answers under cross-examination that he did not
have much to do with the employee
from a work perspective, but a
direct question he was asked in re-examination about the employee’s
reinstatement was correctly
disallowed. Taking all the evidence into
account, the sanction of dismissal was appropriate and fair.
[50]
In the result, the following order is made:
1.
The late filing of the record, including the arbitrator’s bench
notes and the
notice of appeal, are condoned and the appeal is
reinstated;
2.
The appeal is upheld.
3.
The order of the Labour Court is set aside, and is replaced with the
following
order: “a) The award is reviewed and set aside; and
b) the award of the arbitrator is substituted with the following
order:
‘the dismissal of the employee was procedurally and
substantively fair’”;
4.
No order is made in respect of the costs of the appeal.
___________________________
P
Coppin
Judge
of the Labour Appeal Court
Waglay
JP and Kathree-Setiloane AJA concur in the judgment of Coppin JA
APPEARANCES:
FOR THE
APPELLANT:

Anton Myburgh SC and Mark Thys
Instructed by the State
Attorney (Port Elizabeth)
FOR
THE FIRST RESPONDENT:
Mr ZG Makubalo of Makubalo Attorneys
[1]
See:
Melane
v SANTAM Insurance Co. Ltd.
1962 (4) SA 531
(A) at 532C-F.
[2]
Mashigo
v SAPS
[2018]
10 BLLR 943
(LAC) paras 14-17.
[3]
EOH
Abantu (Pty) Ltd v CCMA and Others
(JA
4/18)
[2019] ZALAC 57
(15 August 2019) paras 16 -17.
[4]
See
above para 16.
[5]
(2011)
32 ILJ 2455 (LAC) para 32.
[6]
Le
Roux and Van Niekerk
The
South African Law of Unfair Dismissal
(Juta
1994) 102.
[7]
See:
Mashigo
v SAPS
(above) para 16.
[8]
Compare
:
Impala Platinum Ltd v Jansen and Others
(2017) 38 ILJ 896 (LAC) paras 13-15.
[9]
See:
inter
alia
,
s205 (3) of the Constitution of the Republic of South Africa, 1996.