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[2009] ZALCJHB 17
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Mashiane v Dolie NO and Others (JR1357/07) [2009] ZALCJHB 17 (14 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR 1357/07
In
the matter between:
DINEO
VALENCIA MASHIANE
APPLICANT
and
MR
M DOLIE
N.O.
1
ST
RESPONDENT
SAFETY
AND SECURITY BARGAINING
COUNCIL
2
ND
RESPONDENT
MINISTER
OF SAFETY AND
SECURITY
3
RD
RESPONDENT
COMMISSIONER
OF SOUTH AFRICAN
POLICE
SERVICES
4
TH
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application to review and set aside the arbitration award
issued by the First Respondent (the arbitrator) under case
number
PSSS737-05/06 dated 29
th
January 2007, in terms of which
the arbitrator dismissed the applicant’s case.
[2]
The applicant, Ms Mashiane (hereinafter referred to as “the
employee”) has also applied for condonation for the
late filing
of her review application. The employee has proffered two reasons for
the late filing of the review application. The
first reason relates
to lack of funds and the second to the fact that employee gave birth
to her child shortly after the award
was issued. It is common cause
that the review application is 9 (nine) weeks late.
[3]
In my view the explanation for the late filing of the review
application is satisfactory and reasonable. For this reason and
regard being had to the prospects of success, the late filing of the
applicant’s review application stand to granted.
Background
fact
[4]
The employee was charged with aiding and abetting the entrance of two
foreigners into the Republic of South Africa without valid
visas, on
5
th
January 2005, in contravention of regulation 18(3) of
the South African Police Service (the SAPS) Disciplinary Regulations.
She
was during the disciplinary hearing found guilty and dismissed on
7
th
July 2005. At the time of her dismissal the employee
was stationed at Oliver Tambo International Airport.
[5]
Subsequent to her dismissal the employee referred a dispute to the
Safety and Security Sectoral Bargaining Council (SSSBC).
The
arbitrator found the dismissal to have been substantively fair and
accordingly dismissed the applicant’s claim.
[6]
In his testimony on behalf of the respondent, Mr Mahommed Yahya
Raheem (“Raheem”), a citizen of
India,
testified that the employee was one of the persons present in the
room where he and the other foreigners were directed by
the
immigration officials to wait until all other passengers’
documents were processed. He testified that the employee was
present
when the immigration officials demanded that he pay them an amount of
US$1,000.00 before the two of them could be allowed
into the RSA, as
there was a problem with their visas. After paying the US$800.00,
Raheem and his companion were led outside the
room.
[7]
According to Raheem, outside the room he was approached by Sergeant
Nokere (“Nokere”) who demanded further payment.
At that
stage Nokere was joined by the employee and the two of them forced
him and his traveling companion into the back of a private
taxi,
placed a police jacket over them and instructed them to keep quite.
They were then intercepted by a police vehicle nearby
the Engen
Petrol Station. They were thereafter asked questions and then taken
to the police station.
[8]
Inspector Ralenanye (“Ralebanye”) testified that on the
day in question he was on duty patrolling the airport when
he noticed
Nokere and the employee outside terminal two with two Indian males
standing next to a metered taxi. He observed the
two policemen
pushing the two Indian men into the taxi and also boarding it
themselves. He tried to stop the taxi but it sped off.
He gave chase
and managed to stop it at the Engen petrol filling station which is
situated in the vicinity of the airport. According
to him the
employee shouted at him when he opened the door of the taxi. He then
proceeded to ask the two Indian males what was
happening. They
informed him about the payment of US$800.00 they made to the
immigration officials to allow them entry into South
Africa.
[9]
Ralebanye confirmed the testimony of Raheem that the Indian men were
seated at the rear seat and were covered with a jacket.
He further
testified that it was not normal procedure for policemen to use
metered taxis with passengers from the airport. It was
on the basis
of what he was told by the Indian men that he arrested the employee
and Nokere.
[10]
The investigating officer, Constable Mabote (“Mabote”),
testified that he was informed by the two foreigners that
they had
paid US$800.00 to be allowed into South Africa, and that the demand
for payment happened in the presence of the employee
and Nokere. He
further testified that the employee and Nokere informed him that they
were merely taking a lift in the taxi wherein
the two Indian men
happened to be traveling in.
[11]
Constable Malefane (“Malefane”), who was charged with the
employee and Nokere, testified in support of the employee’s
case. He testified that on 5
th
January 2005, he was
working at the X-ray scanners with the employee when he saw two
immigration officials, one Constable Mohlongo
and two Indian men at
the border police office, and that the employee was, at that time at
the back office resting. He stated that
he heard the immigration
officials explaining the deportation procedure to the Indian men, and
thereafter he left. According to
him there was nothing wrong in the
employee getting a lift in a metered taxi to get to the domestic
terminal. Furthermore, he stated
that it was possible that the
employee might have met Nokere after she left the terminal on her way
to the charge office.
Grounds
for Review
[12]
The applicant contended that the arbitrator’s award was not
justifiable in relation to the reasons given for it, having
regard to
the evidence presented to him. The alternative contention in this
respect was that there is no rational connection between
the material
placed before him and the ultimate conclusion reached by him.
[13]
The arbitrator is further criticized for failing to apply his mind to
the evidence and the facts which were before him and
thus reaching
his conclusion that the applicant’s dismissal of the applicant
was substantively fair.
[14]
The other ground upon which the applicant relies on in challenging
the arbitrator’s award is that the arbitrator committed
a gross
irregularity in failing to apply his mind to the evidence,
misunderstood the evidence and attributed motives to the applicant
which could not reasonably be drawn and relying on suspect evidence.
Arbitrator’s
findings
[15]
The arbitrator under the heading “
Discussion of the case and
findings”
starts by analyzing the evidence of Raheem one of
the foreigners from whom a bribe was allegedly demanded by the
employee together
with her colleague. The arbitrator then states that
there was no reason to suggest that Raheem would be lying regarding
the bribe
demanded at the office and in presence of the employee and
her colleague. It would appear the bribe was demanded in the office
in the presence of one of the fourth respondent’s witnesses.
Strangely the arbitrator finds that the employee was part of
this
although it seems common cause that she was at the back of the office
at that time. It is also not clear as to where did the
arbitrator
find the evidence that Raheem specifically pointed the employee as
the person involved in the bribe.
Evaluation
[16]
In my view the arbitrator failed to apply his mind to the dispute
which was before him and thus committed a gross irregularity.
The
test for gross irregularity was enunciated by the Constitutional
Court in the case of
Sidumo & another v Rustenburg Platinum
Mines Ltd & others
[2007] 12 BLLR 1097
(CC).
In that case the
Court held that the provisions of section 145 of the Labour Relations
Act were suffused by the constitutional standard
of reasonableness.
The standard of reasonableness is determined by answering the
question which was formulated in
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs & Others 2004(7) BLLR 687(CC)
as follows; “
Is the decision reached by the commissioner
one that a reasonable decision-maker could not reach?”
[17]
The test for gross irregularity as was articulated in
Gold
Fields Investment Ltd & another v City of Johannesburg &
another
1938 TPD 551
is summarized in
Sidumo
by Ngcobo J
as he then was (at page 1178-F) as follows:
“
.
. . patent irregularities,” that is irregularities tat takes
place openly as part of the proceedings, on the one hand, and
“patent
irregularities, that is irregularities that take place inside the
mind of the judicial officer which are ascertainable
from the reasons
given by the decision maker.”
[18]
This Court has previously held that the crucial enquiry in
determining the existence of gross irregularity is whether the
conduct of the decision maker complained of prevented a fair trial of
the issues. It is not every irregularity that would constitute
gross-irregularity. It has however been found in a number of cases
that a commissioner commits gross irregularity if he or she
fails to
apply his or her mind to a matter material to the determination of
the dispute.
[19]
In the present instance the matter which was material to the fairness
of the dismissal of the employee had nothing to do with
bribery,
which was the focus of the arbitrator’s mind, but had all to do
with the charge of aiding and abetting foreigners
into South Africa
without a valid visa.
[20]
The record of the arbitration proceedings indicates that the employee
was charge with two counts of misconduct. The first charge
reads as
follows:
“
In
that at or near Johannesburg International Airport and on or about 5
January 2005 you performed an act which constitutes
an offence
by abetting the entrance of foreign nationals into South Africa
without the valid visa documentation.”
[21]
The second charge reads as follows:
“
In
terms of
section 40
of the
South African Police Service Act, 1995
,
Act number 68 of 1995, read with the South African Services
Disciplinary Regulations, you are charged with misconduct, in that
you contravened Regulation 18.1, in that at that at or near
Johannesburg International Airport and on or about 5 January
2005 you
performed an act with the intention not comply with his/her duties
and responsibilities.”
[22]
In considering the above charges, the evidence and the facts which
were before the arbitrator, the only reasonable conclusion
that can
be reached is that the arbitrator misconceived the nature of the
dispute he had to determine. Whilst the arbitrator was
supposed to
focus his investigation into whether the fourth respondent has
discharged its onus of showing that the employee was
involved in
aiding and abetting foreigners entering the country illegally, the
arbitrator was clearly attracted by the story of
the demand for
bribery. That story had no relation to the charges of aiding and
abetting illegal entry into the country. In any
case what story at
best indicates is that the people who asked for the bribery were the
immigration officials. For the applicant
for that matter as indicated
earlier, the evidence is that she was at the back of the office in
which it is alleged the demand
for the bribery was made. Even if it
was to be assumed that the two foreigners entered the country without
visas because of the
bribe they paid, there is no evidence linking
the employee to the demand and the payment thereof. It may well
be that it
is inappropriate for a police officer to take a lift in a
taxi from one point of the airport to the other, but however, there
is
no rule prohibiting that conduct, it would appear neither was the
employee charged with any offence in that regard.
[23]
As indicated above the essence of the charges against Ms Mashiane was
that she aided and abetted illegal entry into the country
by two
foreigners. The evidence of the two foreigners who claimed that a
bribe was required of them testified and clearly stipulated
that
according to them their visas were in order. There is no evidence
that the fourth respondent submitted during the arbitration
proceedings any invalid visa from the two foreigners.
[24]
It would appear that the only witness who could clarify the validity
of the visas was Mr. Sayed, an immigration official. The
essence of
his testimony was that he could not clarify this aspect because he
did not have the visas in question before him.
[25]
The above analysis indicates very clearly that had the arbitrator
applied his mind to the evidence and material before him
he ought to
have found that the respondents had failed in terms of section 192 of
the LRA to discharge the onus of showing that
the dismissal was for a
fair and valid reason. In this respect there is no evidence that the
circumstances surrounding the dismissal
are such that a continued
employment relationship would be intolerable as envisaged by section
193(2) (b) of the LRA.
[26]
It is thus, my view that the arbitration award of the arbitrator
stands to be review, set aside and substituted with an award
that
would have been appropriate and reasonable in the circumstances of
this matter. In the circumstances I see no reason in law
and fairness
why costs should not follow the results.
[27]
In the premises the following order is made:
(i)
The late filling of the review application is condoned.
(ii)
The arbitration award issued by the first respondent on 4
th
April 2007 is reviewed and set aside.
(iii)
The arbitration award of the first respondent is substituted
with the following
award:
“
(i)
The dismissal of the applicant, Ms Mashiane, was substantively
unfair.
(ii)
The third and fourth respondents are ordered reinstate the applicant,
Ms Mashiane retrospective to the date of
her dismissal without loss
of any benefits she previously enjoyed.”
(iv)
The third and fourth respondents are to pay the costs of the
applicant, the one paying
the other to be absolved.
_______________
Molahlehi
J
Date
of Hearing :
24
th
August 2009
Date
of Judgment :
14
th
December 2009
Appearances
For
the Applicant :
Mr J Gouws of Johan Gouws Attorneys
For
the Respondent: Adv LM
Moloisane
Instructed
by :
The State Attorney