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[2010] ZALCJHB 65
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Berends v South African Police Service and Others (JR350/09) [2010] ZALCJHB 65 (22 June 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO JR 350/09
In
the matter between:
RAMOGOPEDI
HANS BERENDS
APPLICANT
and
SOUTH
AFRICAN POLICE SERVICE
1
ST
RESPONDENT
COMMISSIONER
JAMES MOTSHEKGA 2
ND
RESPONDENT
THE
SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL
3
RD
RESPONDENT
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a ruling made by the
second respondent, who refused to condone the late referral
of an
unfair dismissal despite to the third respondent, the bargaining
council.
[2]
The applicant was dismissed on 12 November 2007 after having been
found guilty in a disciplinary hearing on charges of corruption
and
extortion. It was alleged that the applicant and two of his
colleagues (who are not parties to these proceedings) had extorted
money from a foreign national in circumstances where she had been
threatened with arrest. For reasons that are not apparent from
the
papers, the appeal process commenced only in 2008. The decision of
the appeal authority upholding the applicant’s dismissal
was
telefaxed to the applicant’s attorney of record on 27 October
2008. The applicant states that he became aware of the
notice on 28
November 2008.
[3]
On 4 December 2008 the applicant referred a dispute to the bargaining
council. In an affidavit filed in support of an application
for
condonation for the late referral of the dispute, the applicant, the
applicant stated the following under ‘Reasons for
lateness”
in the pro forma affidavit completed by him:
“
I am in deep
grieve: stress: My son past away on 25 -07-2008 after he was run over
by a m/t while he riding his bycicle. (2) On
the 24-Oct 2008 I
received news that my brother Michael Berends were also run over by a
Truck in Cape Town on 15
th
Oct 2008. I went
to Cape Town to support him emotionally and to be there for him. He
lost his one leg and is still in Tygerberg
Hospital. I returned to
JHB and recieved the dismissal report from my attorney on 28-11-2008.
My attorney did not know that he
should send a dispute letter to
SSSBC and Dir De Kock.
(sic)”
[4]
Under the heading “Prospects of success, the applicant recorded
the following:
“
My dismissal is
unfair. It is based on a criminal case fabricated by our seniors Snr
Supt Cole and Suipt Goosen.
The complainant never
attended the hearing and INsp Berends investigated this and found
that on the 14 June 2004 she was not even
in the country.
The presiding officer
who is a friend of Supt Goosen and Snr Supt Cole failed to recuse
himself as requested by the member.
The security guard is
not a active as a security. He lied. Nico Smit and Supt Goosen lied
about dropping Jackson Mokgolo off
(sic)
.”
[5]
In his ruling, the commissioner set out the applicable test for good
cause, recording that it was incumbent on him to take into
account
the degree of lateness, the reasons for the lateness, the applicants
prospects of success and the balance of convenience,
including any
prejudice to the other party, and that what was required was an
objective conspectus of all the facts, and that none
of the factors
was individually decisive. In regard to the degree of lateness, the
commissioner observed that the referral had
been made 8 days late,
which he considered to be ‘relatively minimal’ In regard
to the reason for lateness, the commissioner
rules that he was not
satisfied that the applicant had provided a plausible reason and
explanation for the late referral. The applicant
had not stated that
he was unaware of the prescribed 30-day period, nor had he explained
when he returned to Johannesburg after
his visit to Cape Town on 15
October 2008. In regard to the averment that his attorney was unaware
of the requirement to address
a dispute letter to the bargaining
council, no confirmatory affidavit deposed to by the attorney had
been submitted. In regard
to the prospects of success, the
commissioner records that the applicant’s case, in essence, was
that his dismissal was based
on a criminal case fabricated by his
seniors. The commissioner concludes, “After considering the
Applicant’s submission(s)
and the documents contained in the
Council’s file, my view is that Prima facie, the Applicant has
– on his own uncontested
version- poor prospects of success”.
After further considering the issue of prejudice and referring to a
number of authorities,
the commissioner refused to condone the late
referral.
[6]
In these proceedings, the applicant claims that the commissioner
committed a reviewable irregularity in coming to the decision
that he
did. In his application for review, the applicant has sought to make
out a case that was made before the commissioner.
He has annexed to
his application a number of documents that postdate the application
for condonation, and which appear to have
been acquired for the
purposes of this application. These documents were obviously not
before the commissioner when he made his
ruling. In his notice to the
effect that he would abide by the decision of the court in this
application, the commissioner notes
that he made the condonation
ruling only on the basis of the documents submitted by the applicant.
Documents that do not appear
to have been placed before the
commissioner include medical records relating to the condition of the
applicant’s brother
(these are date stamped 16 February 2009),
as well as an affidavit signed by one Vela Mack Chivoze on 13
November 2007, in which
he stated that in his capacity as a control
immigration officer at the Department of Home Affairs, he has access
to the population
register and the movement control system. He
states, under oath, that he was requested by the South Africa Police
Services “to
establish the legality of Zhou Li she is Taiwan
citizen and Permanent Risisdent in South Africa (sic)”. He
states further
“Ms Zhou Li she depart on 2004/01/20 and she
wanted to come back in country 2004/07/09 and she was not given
permission to
come in the country she entry the country on the
2004/08/04.” The commissioner of oaths who attested to the
affidavit is
none other than the applicant. In these proceedings, the
applicant relies on this to proclaim his innocence of the charges
against
him, and to submit that his prospects of success in his
unfair dismissal claim are good. When questioned about the affidavit
at
the hearing of this application, the applicant cheerfully admitted
to having been the member of the South African Police Services
who is
reflected as having requested the deponent to ascertain Zhou Li’s
movements, that he did so for personal purposes,
that he attested to
the affidavit and that he saw no conflict of interest in his actions.
That aside, I fail to appreciate on what
basis the deponent was able
to depose to an affidavit regarding the whereabouts of a “Zhou
Li” with no reference at
least to a passport number or some
other means of identification, particularly in circumstances where
the foreign national from
whom the applicant was accused of extorting
money is described in the papers as “Li Zhou Jasmine”.
[7]
Be that as it may, since this is an application in which the
reasonableness of the commissioner’s decision is to be
assessed,
that decision must be evaluated by having regard only to
the material before him, and in respect of which his ruling was made.
These included the referral form, the application for condonation and
the supporting affidavit, and the record of the decision of
the
appeal authority. To the extent that the applicant in these
proceedings has sought to make out a case that was not made to
the
commissioner, this court is not empowered to have regard to the
material now proffered by the applicant.
[8]
Turning now to the award under review, the commissioner can hardly be
faulted for regarding a delay of 8 days as not material.
In regard to
the explanation for that delay, there was nothing before the
commissioner to verify the averments made in the applicant’s
affidavit. In relation to the reason for the delay, the commissioner
cannot be faulted for noting that the outcome of the appeal
hearing
(the dismissal letter) had been sent to the applicant’s
attorney, but that there was no explanation from the applicant
(other
than the averment that he was in Cape Town) or from his attorney as
to events after 27 October 2007. In regard to prospects
of success,
the papers before the commissioner included the referral of the
dispute, in which the applicant claimed no more than
that the
evidence given at the hearing by the employer’s witnesses was
fabricated, and that the presiding officer had “
ultered
tapes, so that evidence be weak of the employees on the transcripts
(sic).” The finding of the appeal authority, also before the
commissioner, traverses some 19 pages. It records the grounds
for
appeal raised by the applicant, and deals in some detail with each of
them, by reference to the record of the proceedings,
and concludes
that the first respondent’s witnesses had established that the
applicant (and his two co-accused) had wanted
to arrest a Li Zhou,
demanded and received money from her, and were subsequently
identified in a photo parade, and that the penalty
of dismissal was
appropriate in the circumstances. The appeal authority noted
that in contrast, the grounds of appeal submitted
by the applicant
were technical in nature (the admissibility of certain evidence was
challenged) and on the merits, amounted to
no more a bare denial.
Having regard to the findings of the appeal authority, read as a
whole, the commissioner’s view, (i.e.
that on the applicant’s
own version, his prospects of success were poor) is sustainable by
the material before him and is
not unreasonable.
[9]
In so far as the applicant has clearly considered the nature of these
proceedings to constitute an appeal, it should be recalled
that in a
review application, the issue is not whether the commissioner’s
decision was right or wrong, or whether this court
would have come to
a different conclusion on the same papers. The test is now well
established, and permits this court to interfere
with the
commissioner’s decision if and only if it is a decision to
which no reasonable decision-maker
could
come. On the papers
before him, the commissioner came to a conclusion that some would no
doubt regard as harsh, but in my view,
it is not a decision that is
so unreasonable that it falls outside of a band of decisions to which
reasonable decision-makers could
come.
[10]
For these reasons, the application must fail.
I
make the following order:
1.
The application is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application: 03 June 2010
Date
of judgment: 22 June 2010