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[2011] ZALCJHB 23
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Khosa and Another v South African Police Services and Others (JR1249/07) [2011] ZALCJHB 23 (2 February 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASENO: JR1249/07
In the matter
between
LOUIS SIKHETSO
KHOSA
…........................................................
1
st
Applicant
ELIAS KABISHI
MALATJI
….......................................................
2
nd
Applicant
And
THE SOUTH AFRICAN
POLICE SERVICE
…........................
1
st
Respondent
DENGA MULIMA N.O.
…............................................................
2
nd
Respondent
THE SAFETY &
SECURITY SECTORIAL
BARGAINING
COUNCIL
….......................................................
3
rd
Respondent
JUDGMENT
Molahlehi J
Introduction
This is an
application in terms of which the applicants seeks an order
reviewing and setting aside the arbitration award issued
by the
second respondent (the arbitrator) under case number PSSS222-06/07
dated 10
th
April 2007. In terms of the arbitration award
the arbitrator found the dismissal of the applicants to have been
for a fair reason
and accordingly dismissed the applicant’s
claim of unfair dismissal.
Background facts
The two applicants
are former employees of the first respondent (the SAPS) whose
service were terminated following charges of
misconduct related to
the allegations that they had been involved in the robbery of people
of Senegalese descent at Betrams during
December 1999. The
applicants were also criminally charged for the same offence in the
magistrate court but were found not guilty.
The applicants
challenged the decision of both the disciplinary and the internal
hearing that found them guilty as charged by
referring an alleged
unfair dismissal dispute to the third respondent. The decision to
terminate the services of the applicants
was confirmed by the
arbitrator serving under the auspices of the third respondent. Being
unhappy with that decision the applicants
launched the present
review proceedings.
The incident that
led to the SAPS proffering charges against the applicants as
indicated occurred during December 1999 at Betrams.
In support of
its case that the dismissal was for a fair reason the SAPS presented
its version through several witnesses.
The first witness
of the SAPS was Mr Kone, a taxi driver who testified that on the day
of the incident he transported the first
applicant, Mr Khosa to a
building where the robbery occurred. On their arrival where the
robbery took place Mr Kone was instructed,
by Mr Khosa who left his
cell phone in the taxi, to wait for him. On his return, the two
drove to a petrol garage where the taxi
fare in the amount of R15
00, 00 was paid. This was the first time the two of them met.
Mr Kone then left
and continued with his work. He later travelled back to Betrams to
deliver other passengers. On the second occasion
when he returned to
Betrams he saw a suspicious car behind him. He got scared and drove
straight to the Hilbrow Police station.
A week later Mr
Kone was taken to the Jeppe Police station where he was questioned
about the passengers he transported on the
day in question. He
testified during the arbitration hearing that he identified Mr Khosa
from the photos which the police showed
him as one of the passengers
he transported on the day in question.
The second witness
of the SAPS was Mr Mutsapha Dingue, a member of the Senegalese
community, he testified that on the day in question
he was at a
prayer meeting at about 17h00, when he heard a knock at the door.
One of the people at the prayer meeting, Mr Moma
Jack, went to
investigate who was at the door. On his return he indicated that it
was the police. There were four people at the
door who claimed to be
police but in civilian clothes. They threatened to break the door if
they did not open. After opening
the door the four people started
searching the building. At some point they were ordered by one of
the robbers to go to another
room. On entering the room they saw Mr
Khosa with a bag which according to Mr Dingue had about R60 000, 00
inside. He also saw
another person handing an envelope to Mr Khosa.
The envelope according to him also had money in it.
Thereafter, three
of the robbers left but indicated that they were going to fetch a
van so that they could take them to the police
station. The fourth
person also left after some time.
According to Mr
Dingue, they then on the advice of the chairperson of Senegalese
community went to report the matter to the police
station. On
arrival at the police station they saw Mr Khosa and Mr Malatjie.
They identified Mr Khosa who was with the group
that were at the
building where the robbery took place. Mr Khosa was immediately
surrounded by the Senegalese people who had
come to the police
station to complain about the incident. Mr Malatjie who at that
stage was in a car managed to drive away.
The third witness
of the SAPS was Mr Moma Se who testified that on the day of the
incident he received call from Mr Dingue about
the robbery. On
arrival, at the scene of the incident Mr Dingue informed him that
the robbers had taken the bag and envelop which
was placed in the
store room. It would appear that the report by Mr Dingue to Moma Se
was done outside the building as according
to Mr Moma Se, whilst
they were still talking outside they saw a mercedes benz taxi which
looked suspicious. They decided to
follow it. They tried to stop the
taxi by flicking at it with their lights to no avail. They took its
registration number and
proceeded to the Hillbrow police station
where they found all the other people waiting. They were advised at
the Hillbrow police
station to go and report their case at Jeppe
police station.
The next witness of
the SAPS was Mr J Nell Gousserd, the superintended posted at the
commercial crime unit in Johannesburg. He
was in charge of the
command unit to which the applicant belonged. He testified that on
the day of the incident he held a parade
at about 15h45 and present
in that parade were the two applicants. According to him during the
parade he received a call informing
him that one of the officers
under his command was arrested at the Hillbrow police station. He
then authorised the two applicants
Mr Khosa and Mr Malatjie to
attend to that matter. They travelled to the Hillbrow police station
in the white Golf which was
assigned to Mr Malatjie. He then later
at 23h00 received a call informing him that Mr Khosa was arrested
for armed robbery. He
also received calls regarding the whereabouts
of Mr Malatjie including the car he was driving. He contacted Mr
Malatjie on his
phone and informed him about the matter. Mr Malatjie
informed him that he was at a store buying food and thereafter will
be going
home.
The following day
Mr Gousserd went to Mr Malatjie’s flat in Triumph. Mrs
Malatjie told them on arrival that she did not
know where her
husband was. The white golf which he had used which had been
assigned to him was parked at home. After taking
the finger prints
he used a spare key which he had with him to drive it to the police
station. He later received information
that Mr Malatjie was also
arrested.
Mr G Govender was
the next witness to testify on behalf of the SAPS. He was on duty on
the day in question. He testified about
the arrival of the members
of the Senegalese community and how they informed him what happened
at the building where they were
robbed. Whilst listening to their
statement they pointed out and surrounded Mr Khosa who at that
moment was going out of the
charge office. The men also pointed out
at the golf which was been driven out at that particular moment. He
was not aware who
the driver of the vehicle was but managed to go
out and take the registration number. On his return from taking the
registration
number he found that Sergeants Malebane and Moremi and
the charge office commander, Ms Motsane, had placed a lot of money
on
the table. He gave the registration number to Sergeant Mr Moremi
without enquiring about the issue of money.
The other witness
who testified on behalf of the SAPS was Ms T S Motsane; the captain
who was on duty and was in charge of the
charge office on that
particular day. She was approached by sergeant Malebane with money
which he required to be registered.
She testified that she made a
mistake by writing the name of Mr Fall instead of that of Mr
Malebane in the register.
The testimony of Mr
Malebane who appears to have testified during the arbitration
hearing whilst he was in the Johannesburg prison
was to confirm in
essence what has already been stated above by the other witnesses
i.e. that a group of Senegalese came into
the charge office
complaining that they had been robbed and pointed out in front of
his other colleagues, He also testified that
once Khosa was pointed
out as the robber he together with his other colleagues grapped and
arrested him. They found on him an
envelope which the Senegalese
community claimed to be theirs. When they searched him further, they
found a lot of other notes
in his pockets. The testimony of the
superintended Sifurusha had no direct bearing on the events relating
to the robbery. He
testified mainly about procedure to follow when
filling in SAPS documents.
The case of the
applicant during the arbitration hearing
The version of Mr
Khosa is that on the 28
th
December 1999 he attended the
parade together with the second applicant Mr Malatjie, and whilst
there they were assigned to attend
a docket at the Hillbrow police
station. Before attending to the docket at the Hilbrow police
station he had to take his wife
home at Vosloorous and on his return
he proceeded together with Mr Malatjie to the Hilbrow police
station.
On arrival at the
Hilbrow police station he went to the computer room whilst Mr
Malatjie went to check on the suspects. Mr Malatjie
came back to him
and informed him that there was nothing to do in the docket as there
was still information missing therein.
They then decided to leave
the Hillbrow police station. As they were leaving the police station
they were confronted by members
of the Senegalese community who
accused him of being one of those who robbed them. He was then
arrested and sent to the Jeppe
police station without being
searched. He says that whilst he was at the Hillbrow police station
he saw Ms Motsane’s husband
and Sergeants Malebane and Moremi
together with another official of Indian descent.
Mr Khosa says that
after his arrest he was then taken to the Jeppe police station where
he registered an amount of R50 (fifty
rand) as an item in his
possession.
The next witness
who testified in support of the applicant’s case is Mr
Malatjie. In his testimony he confirmed the instruction
which was
given to them to attend at the Hillbrow police station. He also
confirmed that before going to Hillbrow police station
the first
applicant, Mr Khosa had to take his wife home at Vosloorous.
As concerning what
happened as they were about to leave the Hillbrow police station, Mr
Malatjie says they were confronted by
the Senegalese community
members who accused Mr Khosa of robbing them of their money. The two
of them went back to the charge
office to deal with the situation
that had arisen as a result of the accusation by the Senegalese
community members. He further
says that he enquired from Mr Malebane
as to what was going on and after he was told what the complaint was
he advised Mr Malebane
to open a case against Mr Khosa. He then
advised Mr Khosa that he would leave with the golf to go and attend
to other matters.
Mr Malatjie says
after leaving the police station he contacted Mr. Gousserd to inform
him about what had happened regarding Mr
Khosa but could not reach
him. He then later called Mr Gousserd and during that telephone
conversation told Mr Gousserd that
he was buying food and that he
will explain to him the following day what was happening with the
allegations made by the Senegalese.
As concerning why
he left the golf car at his house Mr Malatjie says that it was
because it had a mechanical problem and therefore
he decided to use
Mazda car to go to work. On arrival at work he gave the key of the
car to Mr Gousserd. He was then later advised
by Mr Gousserd that he
was wanted by the police and that he should go and report at the
Jeppie police station. On arrival there
he was arrested.
Grounds for
review
The applicants
contend that the arbitrator’s award is unjustifiable regard
being had to the evidence which was presented
before him. The
applicants further contend that the commissioner committed gross
irregularity in relation to his duties as an
arbitrator by failing
to properly consider the evidence which was presented before him. In
the founding affidavit the applicants
set out their grounds of
review as follows:
“
20.1
Mr Mommasak, who gave evidence for the First Respondent stated that
he had not witnessed the robbery yet appears as the complainant
in
the criminal trial.
22.2 A certain Mr
Fall, a Court interpreter, is recorded in the SAP13 registrar as the
person who found the money yet he denies
ever seeing it.”
The applicants
further state that:
“
25.1
It was our evidence that the complainant had stated that I
looked
like
the person who had robbed him.
25.2 The
identification by the taxi drive, Mr Kone was based on our
appointment certificates which I believe to be bad in law.”
The arbitrator’s
award
In his analysis of
the evidence and arguments the commissioner identified the issues
raised by the applicants concerning the fairness
of their dismissal
to be the following:
“
The
employer failed to stick to the set down time frame. The matter was
instituted after three years, i.e. the applicants were
for that
period in prison.
Applicants
presented their cases under duress.
The actual
complaint to the matter was never called to the hearing.
The witnesses
used by the employer contradicted themselves. The chairperson
shouldn’t have relied on that testimony.
There was never
an identification parade to identify the alleged robbers.
There were no
grounds to justify conviction on the charges proferred against
them.”
It is apparent from
the reading of the arbitration award that the commissioner rejected
the version of the applicants that they
presented their case under
duress. The arbitrator agreed with the applicants that indeed the
SAPS delayed in instituting its
disciplinary hearing but found that
the delay was in the circumstances reasonable and justifiable. He
concluded in this respect
that the applicants were not prejudiced by
the delay.
The arbitrator also
accepted the version of the SAPS witnesses in relation to the
identification of Mr Khosa as being one of the
people who were
involved in the robbery. The arbitrator found that the
identification particularly by the driver of the taxi
Mr Kone was
not disputed by the applicant. The arbitrator noted the complaint by
the applicants that the SAPS never conducted
a formal identification
parade. In relation to the issue of the applicants being found
guilty of the charges proffered against
them, the commissioner found
that the applicants did not contradict nor dispute the version of
the applicants in relation to
the following testimony:
“
Mr
Kone drove the Mercedes Benz metered taxi. Such a taxi was chased
behind by a car for the reason and by the people not known
to Mr
Kone, i.e. by the Senegalese. Mr Kone neither knew nor had a grange
(sic) Mr Khosa, the basis of which he would want to
use this case to
punish him. Mr Kone pointed to that amongst other passengers he
transported was Mr Khosa in Betrums that afternoon.
The time and the
place presented by the Mr Kone linked very well with that presented
by the Senegalese Mr Dingue.
The applicants
were officially assigned a white golf to attend to a docket in
Hilbrow on the day. Mr Malatjie drove such Golf
during the time the
Senegalese were reporting and pointing to them as robbers in Hilbrow
police station.
Both the
Senegalese (Mr Dingue) and Mr Kone never had problems in identifying
the applicants in the manner they did. The former
identifying him at
Hilbrow police station where (sic) they were reporting such armed
robbery.
Messre Mantsane,
Malebane and Govender of Hillbrow Police Station respectively
participated in taking the registration numbers
of the driving away
Golf, arresting and searching Mr Khosa and later registering the
money, envelope and fire-arm that were found
on Mr Khosa.
Mr Malatjie
could not provide or convince that he wrote notes, registering the
extent to which he attended to the docket, i.e.
as he alleges to
have made in such docket. His testimony regarding the manner he
attended or noted in the docket differs to that
presented by Mr
Safulusha (employer’s witness) and Mr Van De Westhuissen (his
own witness). Further, Ms Sibisi distanced
herself to the affidavit
that Mr Malatjie presented to corroborate his evidence.”
Evaluation
The Constitutional
Court has in
Sidumo and other v Rustenburg Platinum Mines
(2007)
12 BLLR 1097
(CC
), held that the test for a review of an
arbitration award is that of determining whether the conclusion
reached by the commissioner
is one which a reasonable decision maker
could not reach. After setting out that test the Court then went
further to explain
what commissioners are expected to do when
dealing with unfair dismissal disputes. In this respect the Court
had the following
to say:
“
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee's conduct,
whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on
the employee and
his or her long-service record. This is not an exhaustive list.
To sum up in
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given the
power to consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a
decision a commissioner is
not required to defer to the decision of the employer
.”
What is required is that he or she must consider all relevant
circumstances.”
The important
aspect in
Sidumo’s
test and as further explained in the
subsequent case is that the arbitration award in review applications
must be read as a whole
in order to determine whether it meets the
standard of reasonableness. Of course the arbitrator’s award
must be read together
with the record of the arbitration
proceedings. I also agree with the submissions made by counsel for
the SAPS that the arbitration
award must be examined as a whole in
determining whether it falls within any of the transgressions set
out in s 145 (2) of the
LRA.
In my view the
proper analysis of the applicant’s case has more than anything
else do with the assertion that the arbitrator’s
findings and
conclusions were incorrect. This is however not the test to apply
when determining a review application.
In my view the
proper reading of the arbitration award in this matter shows very
clearly that the commissioner had a full understanding
and grasp of
the issues and facts he had to deal with. The applicants do not
complain in this review application about the formulation
of the
issues for determination by the arbitrator. The arbitrator
considered all those issues identified, reasoned his findings
on
them and came to the conclusion as he did that the dismissal of the
applicants was for a fair reason.
The arbitrator
considered the issue of the delay in instituting the disciplinary
hearing by the SAPS and whilst agreeing with
the applicants that
there was indeed a delay in instituting the disciplinary proceedings
against them, he accepted that explanation
for the delay and found
that the delay did not impact on the fairness of the dismissal.
As concerning the
issue of duress, the applicants have not in my view made out a case
as to why the finding of the arbitrator
should be considered to be
unreasonable.
The applicants have
also not made out a case as to why the failure to call the
complainant of the robbery should be regarded as
making the
conclusion reached by the arbitrator unreasonable. The arbitrator
arrived at his conclusion after fairly and objectively
assessing the
facts which were put before him by both parties.
The probabilities
point out very clearly that there was a robbery on the day in
question. The victims of that robbery went to
report the incident at
the Hillbrow police station. On arriving at the police station, they
immediately without any doubt identified
Mr Khosa as the perpetrator
of that crime. It seems to have never been the case of the
applicants that the Senegalese people
may have mistakenly identified
Mr Khosa as part of those who robbed them. The identification of Mr
Khosa by the Senegalese at
the police station is in a sense
confirmed by the version of Mr Kone, the taxi driver. Therefore, the
complaint by the applicants
that the method used with Mr Kone to
identify them bears no merit.
The issue of not
calling the complainant of the robbery does not seem to me to be
that relevant in the determination of whether
or not the applicants
have committed an offence of a serious nature that warranted
dismissal. What is essential is that the applicants
were told about
the nature of the offence or misconduct in details and with the
relevant particulars of the charges against them.
The applicants do
not in this matter raise issue with regard to this essential
principle. The commissioner clearly applied his
mind and was
satisfied that the SAPS had complied with this basic principle
before taking the decision to terminate the employ
of the
applicants.
In my view the
commissioner was correct to proceed with and consider the evidence
before him even though the complainant never
testified. The
arbitrator was correct because the applicants were not charged with
the theft of the money but rather the essence
of the charges against
them had to do more with their position and the offices they
occupied as members of the SAPS. They entered
the premises of the
Senegalese on the basis of their positions as members of the SAPS
and only after fraudulently gaining access
on that basis they
engaged in the robbery. It would be unfair in the circumstance of
this case to expect the SAPS to keep this
kind of characters in its
employ.
In fact the case of
the applicants as I understand it has more than anything to do with
the procedural fairness and largely based
on the complainant that
the SAPS did not follow the technical aspect of an identification
parade. In the circumstances of this
case there was no need to
conduct an identification parade because the victims of their crimes
identified them soon after the
crime was committed.
The arbitrator is
also correct in his assessment of the evidence of the applicants. The
evidence of the applicants were indeed contradictory
and illogical.
The witnesses which the applicants called did not assist their case.
Conclusion
There is conclusive
evidence which supported the version that the Senegalese people were
robbed of their money on the day in question.
The evidence further
placed the applicants at the scene of the robbery. Mr Khosa was
positively and firstly identified within
a short space of time as
one of the perpetrators of the robbery and that was as he was about
to leave the police station. That
evidence is corroborated by the
evidence of the taxi driver, Mr Kone who transported Mr Khosa on
that particular day to the building
where the robbery took place.
Whilst there may be some questions as to the total amount of money
involved, the evidence of Mr
Malebane was to the effect that Mr
Khosa was found in possession of money and in my view the
probabilities point to the fact
that that money belonged to the
Senegalese.
In my view the
applicants have failed to make out a case justifying interference
with the arbitration award and therefore their
case stands to fail.
In law and
fairness, I do not see the reason why the applicants should not be
ordered to pay the costs. There is no basis why
they sought to
review an award where the arbitrator dealt in details with the
evidence and gave detailed reasoning as to why
he came to the
conclusion as he did.
In the premises the
review application is dismissed with costs.
Molahlehi J
Date of Hearing: 20
August 2010
Date of
Judgment: 2
February 2011
Appearances
For the applicant:
Adv Grobler
Instructed by:
Kirchmanns
Inc
For the
respondent: Adv
A. Kook
Instructed by:
Perrott, Van Niekerk, Woodhouse, Matyolo Inc
13