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[2011] ZALCJHB 139
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Minister of Safety and Security v Motshega and Others (JR815/2009) [2011] ZALCJHB 139 (10 February 2011)
Not reportable and not of interest to other judges
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO
: JR815/2009
DATE
: 2011-02-10
In the
matter between
MINISTER OF SAFETY AND SECURITY
......................................
Applicant
and
JN MOTSHEGA
....................................................................
1
st
Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL
.....................................................
2
nd
Respondent
W
MNISI
................................................................................
3
rd
Respondent
___________
__________________________________________________
EX TEMPORE J U D G M E N T
_____________________________________________________________
BASSON J
:
[1] This is a brief ex tempore judgment in the
review application in terms of which the applicant (the Minister of
Safety and Security)
seeks an order reviewing and setting aside the
decision by Arbitrator J.N. Motshega (“the arbitrator”)
under case number
PSSS305/08/09 issued under the auspices of the
Safety and Security Sectorial Bargaining Council. In terms of this
award, the arbitrator
found that the dismissal of the third
respondent Mr. Mnisi (“Mnisi”) was substantively unfair.
The arbitrator reinstated
the applicant The order reads as follows:
"I find that retrospectively
reinstatement of the applicant will be the appropriate relief in the
circumstances of this matter
.”
[2] I do not intend summarising the evidence that was led before the
arbitration in detail. Suffice to point out that the applicant
led
the evidence of one witness only. The witness - Ms. Starkey - gave
evidence about Mnisi’s conduct following the highjack
of Ms.
Starkey’s husband. Although Ms. Starkey was not able to give
evidence in respect of the highjack itself as she was
not present,
she was, however, able to give evidence about the events that
followed the actual highjack and the reporting thereof
to the
police. I will return to her evidence in more detail herein below.
Mnisi closed his case without leading any evidence.
Brief summary of the salient facts
[3] Mnisi was employed by the South African Police on 19 September
2003. On 24 August 2007 a certain Mr. Starkey reported a case
of
armed robbery where he alleged that he was robbed of a Nissan Bakkie
in Marabastad. The case was reported to the Booysens
Police Station
because Mr. Starkey alleged that he was taken to an unknown place in
Sebokeng where he (and the two others that
were with him) was locked
up in a shack and released the next day. When Mr. Starkey came home
the next day he reported the incident
to his wife – Ms.
Starkey. As already pointed out Ms. Starkey was the only person who
gave evidence at the arbitration
and was accordingly the only
witness on behalf of the applicant.
Charges against Mnisi
[4] The following three charges were levelled
against Mnisi.
1
“
CHARGE 1:
In terms of
Section 40
of the
South African Police Service Act,
68 of 1995
, read with the South African Police Service Discipline
Regulations, you are hereby charged with misconduct, in that you
allegedly
contravened regulation 20 (a) fails to comply with, or
contravenes an act, regulation or legal obligation of the Discipline
Regulations,
2006, in that on 2007-08-27 you failed to arrest
Benjamin Obezugo, who was in possession of a hijacked vehicle,
Booysens Cas
1463/08/2007.
Alternative: Reg 20 (f) stipulates prejudices the administration,
discipline or efficiency of a department, office or institution
of
the state.
CHARGE 2:
In terms of
Section 40
of the
South African Police Service Act,
68 of 1995
, read with the South African Police Discipline
Regulations, you are hereby charged with misconduct, in that you
allegedly contravened
regulation 20 (q) contravenes any prescribed
Code of Conduct did not act impartially, honestly and in an
accountable manner of
the Discipline Regulations, 2006, in that on
2007-08-27, demanded a sum of R 6 500.00 from Mr Alister Abraham
Starkey and his
wife Faieza Starkey, on behalf of Benjamin Odezugo
(sic) in order for Faieza Starkey’s vehicle. That was
allegedly hijacked,
to be returned by Benjamin Odezugo instead of
effecting arrest and proper investigation.
Alternative: Reg 20 (f) stipulates prejudices the administration,
discipline or efficiency of a department, officer or institution
of
the state.
CHARGE 3;
In terms of
Section 40
of the
South African Police Service Act,
68 of 1995
, read with the South African Police Service Discipline
Regulations, you are hereby charged with misconduct, in that you
allegedly
contravened regulation 20 (z) commits a common law or
statutory offence by defeating the ends of justice of the Discipline
Regulations,
2006, in that on 200-08-27, you instructed and demanded
R 6 500.00 from the complainant Faieza Starkey and Alister Abraham
Starkey
to be paid to Benjamin Odezugo (sic) a third party, before
you intended returning the hijacked vehicle to the complainant
Faieza
Starkey of which it defeats the original hijacking case in
the defeating the ends of justice, as a charge in this matter.”
[5] It was common cause that Mnisi was found not guilty on the
alternative charges to charges one and two respectively. He was,
however, found guilty on charges 1, 2 and 3. He was dismissed
following the guilty finding.
The evidence of Ms. Starkey
[6] Ms. Starkey’s evidence in brief was that she was told by
her husband that he was hijacked on 23 August 2007. She testified
that her husband came home only the following day and that he
clearly was in a state of shock. She could also see that he was
beaten. As already pointed out, the matter was reported to the
police and a charge was laid. A statement was taken from Mr. Starkey
and he and his wife were told that the police will keep them
informed of any developments in respect of the matter.
[7] On 27 August 2007 (subsequent to them reporting the matter to
the police) a police van from the Booysens Police station came
to
their house. Ms. Starkey testified that she thought that the police
came to give them feedback on the case. She testified
that Mnisi
came to the door and told them that he wanted to speak to Mr.
Starkey in private. Mnisi told her that he was busy
with the
investigation and that she was obstructing justice. She testified
that Mr. Starkey was visibly distraught after his
discussion with
Mnisi. Mr. Starkey told her that Mnisi had told him that the vehicle
was found but that he wanted money from
him in order to release the
vehicle.
[8] Ms. Starkey went out to speak to Mnisi. She asked him whether or
not the car was found and why he wanted them to pay for
the release
of the vehicle. Mnisi told her that he had an informer and that Mr.
Starkey would be arrested for perjury. From hereon
the sage only
gets worse.
[9] Mnisi then left. He returned later with the police van with
another officer and a man sitting at the back. The man at the
back
had a hooded top so they (the Starkeys) could not see his face. He
(the man who later appeared to be a Nigerian) told them
that they
had to get money. She told him that she wanted the car back. The
Nigerian told her that he wanted money so that they
can “sort
this thing out” and told her that he wanted R 6 500.00. She
told him that she could not get so much money
at that time of the
night but that she would ask her mother- in -law. She asked her
mother- in- law for the money but managed
to get only R 1000.00.
Mnisi told Ms. Starkey that he could not take the money and that
they should speak to the man in the car
and told them to negotiate
with the man (the Nigerian) in the car. Ms. Starkey testified that
they felt intimidated. Mnisi thereafter
took them to the police
station and told them that he (Mnisi) had to protect them and this
Nigerian. Mnisi went into the police
station and came out with what
is referred to as an affidavit which Mr. and Ms. Starkey then had to
sign. In this affidavit they
acknowledged that they owed the
Nigerian money.
[10] Mnisi then took the Starkeys to a house. After they had parked,
Mnisi got out of the car and went into the house. When he
returned
he had the keys of the bakkie. He then said to them “now let
us go and fetch the car now”. Mnisi then drove
straight to
where the car was. According to Ms. Starkey it was clear that Mnisi
knew exactly where the car was. The car was then
driven by her to
the police station on the instruction of Mnisi. Mnisi told her that
she should not worry because he will give
her a number in order to
get the car from the pound. He said that they must make sure that
they have the money. Mnisi came back
later in the evening and gave
her a number in order to collect the car. Ms Starkey later fetched
the car from the police station.
[11] Ms. Starkey testified how Mnisi thereafter started to harass
her. He would phone her repeatedly and demand that she pay
the rest
of the money. She testified that she felt extremely threatened by
his behaviour.
The award
[12] Despite the uncontested evidence, the arbitrator found the
dismissal to be substantively unfair. The arbitrator, although
correctly recognising that he had to decide the matter on the
probabilities, came to the conclusion that the applicant had failed
to prove on a balance of probabilities that Mnisi had contravened a
rule or standard. This conclusion is, in my view, completely
unreasonable in light of the overwhelming evidence presented by Ms.
Starkey which confirms that Mnisi – who was a police
officer
at the time - was involved in serious misconduct (see the charge
sheet). In my view there could not have been any doubt
in the mind
of the arbitrator that the activities in which Mnisi participated in
fact contravened a rule.
[13] The arbitrator then made two crucial
findings. The first was that Ms. Starkey could only lead hearsay
evidence in respect
of the hijack. Although it is correct that Ms.
Starkey was not present during the highjack, she was present during
most of what
had transpired
after
the highjack. More importantly, she was present
when Mnisi introduced the Nigerian to her and her husband. She could
also give
direct evidence to the fact that Mnisi was present when
the money (demanded by the Nigerian in Mnisis’ police van) was
collected from her mother-in-law. She was present when Mnisi took
them to the police station and told them to sign the so-called
affidavit. Mnisi took her and her husband to the house where he
(Mnisi) collected the key of their vehicle. She was also present
when Mnisi took them to the car. Mnisi phoned her and intimidated
her. Put differently: Although she was not present during the
highjack she was present during the events that clearly showed that
Mnisi was involved in the misconduct for which he was eventually
dismissed. Her evidence in respect of these events certainly does
not constitute hearsay evidence.
[14] I find it furthermore startling that the arbitrator made no
finding whatsoever in respect of the fact that Ms. Starkey was
present when the money was demanded, when the keys were handed over;
when the so-called affidavit was given to them to sign and
when
Mnisi took them to where the car was parked. It appears that this
evidence was simply ignored by the arbitrator, In my view,
by
ignoring this crucial (direct) evidence the arbitrator completely
misdirected himself. Moreover, the arbitrator appears to
have
ignored direct evidence that pointed to Mnisi’s involvement in
serious misconduct. On this ground alone the award
should be
reviewed and set aside. I will return to this point hereinbelow.
[15] The second finding of the arbitrator is even more startling and
unreasonable. The arbitrator held that because Mr. Starkey
did not
lead any evidence, the applicant did not prove on a balance of
probabilities that Mnisi’s dismissal was substantively
unfair.
Again, the arbitrator inexplicably decided to ignore the
overwhelming direct evidence of serious misconduct:
“
The
Respondent’s failure to lead any relevant and reliable
evidence during the arbitration to substantiate the charges against
eh Applicant considering that the Respondent bears an evidentiary
burden to prove on a balance of probabilities that
the
Applicant’s dismissal was fair – lead me to conclude
that the Applicant’s dismissal was substantively unfair.”
[16] The arbitrator, in concluding that the applicant did not prove
that the dismissal of Mnisi was substantively fair arrived
at a
decision that, in my view, no reasonable decision-maker could have
arrived at. Not only did the arbitrator display a complete
misunderstanding of the legal principles regarding hearsay evidence,
the arbitrator clearly did not understand how evidence should
be
weighed up. Ms. Starkey was the only witness at the arbitration. She
gave detailed evidence about the events: Mnisi was present
when
money was extorted from them. The Nigerian man was in the police van
with Mnisi. Yet Mnisis made no attempt to arrest him.
On the
evidence presented to the arbitration Mnisi clearly dismally failed
in the performance of his duties as a police officer.
Apart from the
fact that Mnisis did not attempt to arrest the Nigerian, he allowed
him (the Nigerian) to extort money from two
civilians. Mnisi further
abused his power as a police officer in order to assist the Nigerian
to extort money from the Starkeys.
In fact, he went as far as to
take them to a police station to force them to sign a so-called
affidavit in which they (the Starkeys)
acknowledged that they owed
the Nigerian money. The evidence before the arbitrator was therefore
overwhelming against Mnisi.
It is therefore inexplicable (as already
pointed out) that the arbitrator (in evaluating the evidence, and
the probabilities)
did not consider why Mnisi brought the Nigerian
to the house to extract money from the Starkeys. Also inexplicable
is why the
arbitrator did not even attempt to consider why Mnisi had
the stolen car keys in his possession and how he knew where the car
was parked. The arbitrator also did not consider why Mnisi was
involved in the so-called affidavit. More importantly, why did
the
arbitrator not consider why Mnisi did not arrest the Nigerian?. Had
the arbitrator considered at least some of these issues,
he would
not have arrived at the decision that he did.
Mnisi’s failure to lead evidence
[17] The arbitrator furthermore did not even
attempt to consider the effect of Mnisi’s failure to lead
evidence. Although
the arbitrator correctly recognised that a
hearing before the bargaining council is a hearing
de
novo,
he
failed
to consider whether or not the evidence that was led on behalf of
the respondent established a
prima
facie
case. Instead of considering
this issue, the arbitrator drew a negative inference from the fact
that Mr. Starkey did not lead
evidence. No negative inference was
however drawn from the fact that Mnisi had elected not to give
evidence. The evidence of
Ms Starkey, in my view, established a
strong
prima facie
case.
Although in civil cases the fundamental question always is whether
or not the party who bears the onus has discharged it,
2
a negative inference may be drawn from a
respondent’s failure to give evidence. In other words, the
mere fact that the party
(who does
not
bear the onus) decides not to give evidence does
not as a matter of course entitle the applicant (or plaintiff) to
the relief
sought. However, where the evidence is such that the
version of the applicant, having regard to the absence of an
explanation,
is more probable than not, the applicant may be
entitled to the relief sought.
3
[18] In the present case the evidence of Ms.
Starkey calls for an explanation on various crucial aspects. There
was therefore
sufficient evidence before the arbitration to have
warranted the arbitrator to come to the conclusion that the
applicant has,
in the absence of an explanation, proven on a balance
of probabilities, that the dismissal was substantively fair.
was
therefore a case to answer and Mnisi has decided not to do so. See
in this regard
Food & Allied Workers Union & Others v
Amalgamated Beverage Industries Ltd
(1994) 15
ILJ
1057
(LAC) where the LAC held as follows:
“
There was no direct evidence linking
any of the appellants to any particular act in relation to the
assault and the respondent’s
case was based on inference
alone.”
I must interpose here to point out that the evidence of Ms. Starkey
constituted direct evidence and therefore the arbitrator
in this
matter was not called upon to make a finding based on inference
alone. The Court continued as follows:
“
None
of the appellants gave evidence, either in the court a quo or in the
course of the disciplinary hearing. The attitude adopted
by the
appellants throughout was that it was for the respondent to
establish their complicity, and that no case had been made
out
against any of them which called for a reply.
The extent to which a party's failure to give evidence may
properly give rise to an inference against him has received
considerable
attention from the courts. What emerges from the
decided cases is that his failure to do so cannot by itself
constitute proof
of what is alleged against him.
Nevertheless
the evidence against him, though not conclusive, may be such that an
explanation would be expected if one was available.
In such cases
his failure to provide an explanation may be placed in the balance
against him.
The approach in civil cases is illustrated
by the following extract from the judgment of Schreiner JA in
Galante v Dickinson
1950 (2) SA 460
(A) at 465:
'It is not advisable to set down any general rule as to the
effect that may properly be given to the failure of a party to give
evidence on matters that are unquestionably within his knowledge.
But it seems fair at all events to say that in an accident
case
where the defendant was himself the driver of the vehicle the
driving of which the plaintiff alleges was negligent and caused
the
accident, the court is entitled, in the absence of evidence from the
defendant, to select out of two alternative explanations
of the
cause of the accident which are more or less equally open on the
evidence, that one which favours the plaintiff as opposed
to the
defendant.'
In the field of industrial relations, it may be that policy
considerations require more of an employee than that he merely
remain
passive in circumstances like the present, and that his
failure to assist in an investigation of this sort may in itself
justify
disciplinary action
. This was an issue which was
raised in the court a quo, but in view of the conclusion to which I
have come to, it is not necessary
to deal with it in the present
case.
The inference which the respondent seeks to draw from the
evidence is that all the appellants were present at the time the
assault
took place, and either actively participated in the assault
or at least supported and encouraged the actual perpetrators. It is
a cardinal rule of logic when reasoning by inference that the
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn (R v Blom
1939 AD
188
at 202-3). In my view all the evidence in the present case is
consistent with that inference.”
4
See also
Louw v
Golden Arrow Bus Services (Pty) Limited
2000
(21) ILJ 188 (LC) where the Labour Court referred with approval to
the following passage from Hoffman and Zeiffert:
“
[57] Hoffmann & Zeffertt say at
596:
'In this sense, prima facie evidence means evidence capable of
being supplemented by inferences drawn from the opposing party's
failure to reply.
Whether such inferences may
legitimately be drawn depends upon the nature of the case and the
evidence which has been adduced.
Most important, it depends upon
''the relative ability of the parties to contribute evidence on that
issue'.
If the evidence adduced by one party can
reasonably support an inference in his favour, and it lies
exclusively within the power
of the other party to show what the
true facts were, his failure to do so may entitle the court to infer
that the truth would
not have supported his case.
On the
other hand, if there is no reason to expect a party to be able to
throw light upon the facts, his silence can add nothing
to the
evidence adduced by his opponent.'”
5
[19] As already pointed out, the evidence of Ms. Starkey was of such
a nature that it required an answer from Mnisi. The evidence
is such
that the version of the applicant, having regard to the absence of
an explanation, is more probable than not. Consequently,
in
concluding that the dismissal was substantively unfair, the
arbitrator arrived at a decision which no reasonable decision-maker
could have arrived at. In the event the award is reviewed and set
aside and replaced by an order that the dismissal was fair.
I can
find no reason why costs should not follow the result
[20] In conclusion I must briefly point out that there was an
application for the late filing of the review application. I have
considered the application and have decided to grant condonation.
[21] In
the event the following order is made:
1. Application for condonation for the late filing of the review is
granted.
2. The award is reviewed and set aside and replaced with an order
that the dismissal was fair.
3. The third respondent is ordered to pay the costs.
AC BASSON, J
Date of proceedings and judgment: 10 February 2011
Date of
revision: 3 March 2011-03-08
For the applicant:
Adv N Sikhakane. Instructed by the State Attorney
For the respondent:
Mr Masote of BT Masote Attorneys.
1
The
charges were quoted verbatim from the charge sheet. I have not
attempted to correct any language errors.
2
DT
Zeffertt, AP Paizes and A St Q Sheen “The South Afrian Law of
Evidence” page 128
et
seq
.
3
Ibid
at
129.
4
Court’s
emphasis.
5
Ibid.