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[2011] ZALCJHB 103
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Mosima v South African Police Services (SAPS) and Others (J1031/09) [2011] ZALCJHB 103; (2012) 33 ILJ 1225 (LC) (25 November 2011)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE NO: J 1031/09
In the matter between:
GOITSIMANG DAVID MOSIMA
…...............................................................
Applicant
and
SOUTH AFRICAN POLICE SERVICES (SAPS)
….........................
First
Respondent
DENGA MULIMA N.O
…............................................................
Second
Respondent
THE SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL
…............................................................
Third
Respondent
Heard
: 17 August 2011
Delivered:
25 November 2011
Summary:
Review – arbitration award – admission of
hearsay evidence. Principles governing admission of hearsay evidence.
Applicant
a police man charged with soliciting and receiving a bribe.
Review dismissed.
JUDGMENT
Molahlehi J
Introduction
This is an application to review and set aside the arbitration award
of the second respondent made under case number case number
PSSS
501-07/08 and dated 12 June 2008. In terms of the arbitration award
the arbitrator found the applicant to have been guilty
of dishonesty
and for that reason found his dismissal to have been for a fair
reason.
The applicant has also applied for condonation for the late filing
of his review application. The respondent indicated at the
hearing
of this matter that it did not oppose the condonation application.
Condonation for the late filing of the review application
was
accordingly granted.
Background facts
The facts in this matter are generally common cause. The testimony
of each of the witnesses of the respective parties is summarised
in
some details in the Commissioner’s arbitration award and for
that reason I do not intend dwelling into the details of
the
specific testimony of each witness in this judgment.
The applicant, the former employee of the first respondent (the
respondent) was charged and dismissed for misconduct related
to
soliciting and accepting a bribe in the amount of R700, 00 from two
members of the public who happened to also be illegal
immigrants.
The charges which were proffered against the applicant were
consequent to the incident that occurred on 17 June 2006 at Linden.
On that day, whilst patrolling the area, the applicant and his
fellow employee, Sgt Mvudle came across two people who apparently
appeared to them to be foreigners. They confronted them and enquired
as to their citizen status because they suspected them of
being
illegal immigrants. The two people came to be known as Grishime and
Zanele.
Zanele told the applicant and Mvudle that she was from Brits and
Greshime said that he was from Malawi. The two were then taken
to
the Linden police station where Grishme told the applicant that
their legal documents permitting them to be in the country
were at
their place of residence. It was then arranged that Sgt Mvudle would
accompany the two in the state vehicle to go and
verify the
authenticity of the documents. It would appear that the arrangement
was also that Sgt Mvundle would bring back the
documents with him.
As indicated above Sgt Mvundle took both Grishime and Zanele to
their place of residence. On his return he handed a sealed envelope
to the applicant. Upon opening the envelope the applicant found the
amount of R700,00 therein. The applicant then enquired from
Sgt
Mvudle as to what the money was for. When Sgt Mvumdle indicated that
he did not know, the applicant told him to return the
money. The two
of them then drove to the place of residence of the Grishime and
Zanele but did not find them. They drove there
on a number of
occasions to no avail.
The applicant and Sgt Mvudle continued with looking for Grishime and
Zanele the following day, 18 June 2006. On arrival where
the two
suspects stayed, the applicant who had been dropped at the gate by
Sgt Mvundle met with Du Preeeze who apparently claimed
to be an
attorney. According to the applicant he also told him that the two
suspects were not present and that as soon as they
arrive he would
bring them to the police station as he was aware that they had
bribed the police the previous day. He then handed
the R700, 00 to
Mr Du Preeeze after exchanging the telephone numbers and arranging a
meeting for 18h00 at the police station.
Mr Du Preeze attended at the police station for the 18h00 meeting as
was arranged but did not bring with him the two suspects.
The
meeting was attended by Insp. Hutting an officer of the first
respondent. According to the applicant Mr Du Preeze alleged
during
the meeting that they had come to his place to apologise to Zanele
for taking the bribe from her. The applicant denied
that he had gone
to see Zanele in order to apologise.
The grounds for review
The key issue in the applicant’s grounds for review is that
the Commissioner erred in accepting the hearsay evidence in
finding
that he was guilty of the offences that he was charged with. The
grounds upon which the applicant relies on in challenging
the
arbitration award can briefly be summarised as follows: The
Commissioner erred in:
accepting hearsay evidence that did not link the applicant to
offences he was charged with.
placing much reliance on Mr. Du Preeze as an independent witness to
establish that the applicant was directly or otherwise
gave the
instruction for the payment of the bribe in the amount of R700, 00.
accepting the versions of the employer’s witness without
confirmation from Zanele and Greshime who never testified .
finding that the first respondent discharged the onus of proving
that a valid and fair reasons existed for the dismissal.
in concluding that the employment relationship broke down regard
being had that the incident happened on 17 June 2006 and thereafter
the working relationship continued as normal until 23 January 2007,
when the applicant was suspended and to be charged on 16
February
2007.
It was further submitted that the Commissioner misunderstood the
evidence and failed to apply his mind and thus committed a material
error of fact which makes his award reviewable.
The arbitration award
In his analysis of the evidence and arguments by the parties the
Commissioner after referring to the South African Police Services
Act 68 of 1995 upon which the charges proffered against the
applicant were founded, summarises the ground upon which the
applicant
challenged his dismissal as follows:
‘
The
employer’s decision in the disciplinary hearing was based on
hearsay evidence.
Applicants were not given
transcript of the disciplinary hearing in order for them prepare for
their appeal application.
The actual complainants in the
matter never testified in the disciplinary hearing.
The employer has no grounds
justifying conviction and consequently dismissing them.’
Thereafter, the Commissioner summarised the provisions of the law
regarding unfair dismissal, in particular sections 188(1) (b)
and
192 (1) (2) of the Labour Relations (the LRA),
1
including Item 7 of Schedule 8 of the LRA, the Commissioner
summarised the common cause facts.
In arriving at the conclusion that the dismissal was for a fair
reason, the Commissioner accepted the version of the first
respondent and rejected that of the applicant. The Commissioner
rejected the applicant’s version on the grounds that it was
shocking and unbelievable. According to the Commissioner the
applicant and his fellow employee could not provide a reasonable
and
satisfactory explanation as to why they did not:
follow the operating procedure of the respondent
open the docket for the alleged bribe by the suspects
record the incident in the Occurrence Book
assign the matter to the relieving staff when they knocked off.
The Commissioner found the explanation as to why the above were not
done to be nothing but a fabrication by the applicant and
his fellow
employee. The Commissioner correctly found further that the version
of the applicant and his fellow employee was unsustainable
in that
it did not make logic for Sgt Mvundle to leave the suspects behind
and take the envelope which supposedly contained the
identity
documents to the applicant who was to make a decision as to whether
or not the suspects were legally in the country.
The suspects had
already been released by Sgt Mvundle and therefore there would be no
purpose for the applicant to make a decision
as to whether the
suspects were illegal immigrants or not.
Evaluation
It seems to me that the starting point in considering this
application is to determine the true nature of the relief which the
applicant is seeking in his grounds for review. A proper analysis of
the grounds of review set out in the applicant’s founding
affidavit indicates that the applicant is seeking to challenge the
correctness of the Commissioner’s decision rather than
its
reasonableness or otherwise.
The test to apply in considering whether the grounds of review set
out by an applicant warrant interfering with the Commissioner’s
arbitration award, is that of a reasonable decision maker as
confirmed by the Constitutional Court in
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others.
2
The test to apply is whether the decision reached by the
Commissioner is one which a reasonable decision maker could not
reach.
In applying this test the Court has been cautioned to guard
against blurring the line between review and appeal. The test for
appeal is that of determining the correctness of the decision maker
whereas in a review the test is that of determining the
reasonableness of the decision or whether the arbitration award
suffers from any of the defect set out in section 145 of the LRA.
3
Thus the difference between an appeal and a review lies in the
distinction between the concept of reasonableness and correctness.
In applying the test for appeal, the court scrutinises the decision
of the decision maker on the basis of determining its correctness
which entails evaluating the exactness, precision and or accuracy in
either its conclusion on the facts or the law. On the other
hand the
review test requires the Court to scrutinise the reasonableness of
the decision maker which entails looking at whether
the decision is
sensible, rational and or fair.
The importance of drawing the distinction between review and appeal
can be found in the decision of the Supreme Court (SCA) in
the case
of
Samancor Tubatse Ferrochrome v MEIBC and Others,
4
where the Labour Appeal Court on appeal was overruled, essentially
on the basis of failure to appreciate the limited nature of
a
review. In emphasising the importance for the need to appreciate the
narrow question which a Court in a review has to answer
and in
overruling the LAC judgment, the SCA had the following to say:
‘
It is
apparent from the reasons given by the Labour Appeal Court that it
did not appreciate the limited nature of the question that
had been
before the Labour Court – and hence the limited question that
was before it on appeal. Nowhere in its reasons is
there any express
finding that the award was one that no reasonable decision-maker
could make nor does it appear by implication.
The most that can be
said is that it found that the arbitrator erroneously categorised the
dismissal – . . .
but
error is not by itself a proper basis for reconsidering an award
.’
It is apparent that the formulation of the grounds of review in the
present instance is based on the grounds of seeking to have
the
arbitration award scrutinised on the basis of the correctness of the
decision of the arbitrator. The essence of the applicant’s
complaint is that the arbitrator erred in arriving at the conclusion
that his dismissal was for a fair reason. The applicant
criticises
the manner in which the arbitrator evaluated the evidence presented
during the arbitration hearing. The applicant
says that the
Commissioner erred in basing his decision on the hearsay evidence of
witnesses who were not called to testify before
him.
In my view the applicant’s application stands to fail on the
basis of the manner in which he has pleaded his case. It is
trite
that a litigant in motion proceedings has to make his or her case on
his or her papers. The nature of the relief sought
has to be pleaded
in the founding papers. In a review application, the papers have to
show that the cause of the complaint against
the arbitration award
is either that its outcome is unreasonable or it suffers as
indicated above from any of the defects referred
to in section 145
of the LRA. Because of the stringent nature of the review test,
quite often parties seek to avoid that test
by relying on the appeal
grounds in their effort to challenge the outcome of an arbitration
award. In other words they disguise
an appeal for a review. This has
resulted in the Court being inundated with review applications. In
the recent case of
Lulama Hlasela v General Public Service
Bargaining Council
and Others
,
5
the Court in dealing with a matter where the case was pleaded on the
basis of an appeal but disguised as a review through reference
to
the concept of “unreasonableness,” correctly rejected
that as not constituting a proper review application and
on that
ground alone dismissed the case of the applicant. In this regard
Bhoola J had the following to say:
‘
[15]
In my view, the applicant does not even begin to address the test on
review. The pleadings and submissions were replete with
references to
“errors” made by the arbitrator, embellished at
appropriate moments by reference to “unreasonableness”.
This does not by any means meet the
Sidumo
standard.
This Court is being inundated with reviews being brought on spurious
grounds simply where applicants are dissatisfied
with the outcome
despite the arbitrator having prepared a comprehensive and
well-reasoned arbitration award based on a thorough
application to
the issues and evidence well beyond what is expected of him/her. In
these circumstances, having regard to the submissions
of the parties,
I am unable to find that there is any basis to conclude that the
arbitrator made a decision that
could
not have been
made
by a reasonable arbitrator on the material evidence. For this reason,
the review must fail and there are no reasons why costs
should not
follow the result.’
The same applies in the present instance where the applicant clearly
realised that he would not succeed in challenging the arbitration
award properly for unreasonableness. The grounds upon which the
applicant seeks to challenge the outcome of the arbitration award
are clearly in my view based on the contention that the outcome is
incorrect. For this reason alone the applicant’s application
stands to be dismissed.
The applicant’s case would still stand to fail even if the
above finding was to be found to be too technical. In other
words
the application would still stand to fail even if the grounds of
review as formulated by the applicant were to be interpreted
as
challenging the reasonableness of the arbitration award.
The application would fail because in the first instance the
criticism that the arbitrator erred in basing his decision on
hearsay evidence bears no merit. In my view, the proper reading of
the arbitration award does not support the contention of the
applicant that the decision was based on the hearsay evidence. A
proper analysis of the arbitration award reveals that the arbitrator
decided the applicant’s case on the basis of the totality of
the facts and material before him. On the balance of probabilities,
supported very strongly by even the version of the applicant, there
is no basis to fault the finding of the arbitrator that the
applicant was guilty of a dishonest conduct that destroyed the trust
relationship with respondent. The trust relationship could
not be
sustained in a situation where the applicant had contravened both
legislation and the regulations governing such conduct.
Again even if it was to be found that the arbitrator did rely on the
hearsay evidence in arriving at the conclusion that the
dismissal of
the applicant was for a fair reason, the question would still remain
as to whether in the circumstances of this
case such an approach was
reasonable or otherwise.
The criticism that the arbitrator incorrectly admitted hearsay
evidence bears no merit if regard is had to the circumstances
under
which hearsay evidence may be admitted in terms of the provisions of
section 3 of Evidence Amendment Act (the Act).
6
The general principle governing hearsay evidence is that hearsay
evidence is inadmissible in both criminal and civil cases. However
the exception to this principle is provided for in section 3 of the
Act which provides that the hearsay evidence may be admissible
if it
is in the interest of justice and satisfy any of the following
conditions:
each party against whom the evidence is to be adduced agrees to
the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person
upon whose credibility the probative value of such evidence
depends;
(vi) any prejudice to a party which the admission of such evidence
might entail; and
(vii) any other factor which should in the opinion of the court be
taken into account, is of the opinion that such evidence should
be
admitted in the interests of justice.
In line with the provisions of section 3(1)(c) the general approach
which the Courts have adopted in considering whether it was
proper
or otherwise to admit hearsay evidence has been to have regard to
the very nature of the proceedings which the arbitrator
was
conducting, namely the arbitration proceedings. This approach is
also in line with the provisions of section 138(1) of the
LRA which
provides that:
‘
(1)
The commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the
dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.
(2)
Subject to the discretion of the commissioner as to the appropriate
form of the proceedings, a party to the dispute may give
evidence,
call witnesses, question the witnesses of any other party, and
address concluding arguments to the commissioner.’
It is clear from the reading of section 138 and the broader
objectives of the LRA that it was never the intention of the
legislature
that the arbitrator in approaching arbitration
proceedings would do so in the same way as a court of law. If that
approach was
to be adopted then the objective and the purpose of the
LRA would be defeated and in fact that would make the labour dispute
resolution system unworkable. The purpose of providing for the
exception to the hearsay rule in section 3 of the Act is explained
by the Labour Appeal Court in the case of
Southern
Sun Hotels (Pty) Ltd V Sa Commercial Catering & Allied Workers
Union & Another
(2000)
21 ILJ 1315 (Lac) as follows:
‘
[13]
The provisions of s 3 of the Evidence Act which are to me that the
legislature enacted the provisions of s 3 in order to create
a better
and more acceptable dispensation in our law relating to the reception
of hearsay evidence. The wording of s 3 makes it
clear that the point
of departure is that hearsay evidence is not admissible in civil and
criminal proceedings. However, because
the legislature was conscious
of various difficulties associated with the reception of hearsay
evidence in our law up to that stage
and wanted to bring about a
better dispensation, it created a mechanism to determine
circumstances when it would be acceptable
to admit hearsay evidence.
[14] The legislature also
decided that the test whether or not hearsay evidence should be
admitted would be whether or not in a
particular case the court
thought it would be in the interests of justice that such evidence be
admitted. It also decided on what
factors a court should take into
account in determining whether or not in a particular case it would
be in the interests of justice
to admit a particular piece of hearsay
evidence.”
In dealing with the issue of the admission of hearsay, Lagrange J in
the unreported case of
POPCRU obo Maseko v Correctional Services
and Others
,
7
held that:
‘
44.
While it may seem that there is a tension between the requirement
that section 3 of the Evidence Act must be applied by arbitrators
when deciding whether or not to admit hearsay evidence and precept
that strict adherence to formal rules of evidence is not required
in
arbitration proceedings, it must be remembered that section 3(1)(c)
requires the arbitrator to consider the nature of the proceedings
when making a ruling on the admission of hearsay evidence.’
In
Maseko,
the witnesses who did not testify but whose
statements were admitted in evidence were inmates of correctional
services centre.
In admitting their evidence the arbitrator took
into account the circumstances at the correctional services where
the inmates
are often there on a temporary basis. In addition the
arbitrator took into account as an important factor the fact that
the inmates
who did not testify at the arbitration hearing did
testify at the disciplinary hearing and that they were
cross-examined by the
representative of the applicant. The Labour
Court, in upholding the decision that the dismissal of the applicant
was fair, held
that the admission of the hearsay evidence was in
compliance with the provisions of section 3 of the Act and could
therefore
not be regarded as being unreasonable.
The Court in
Maseko
quoted with approval what was said in
Naraindath v Commission for Conciliation, Mediation and
Arbitration and Others,
8
where the Court held that:
‘
It
would stultify the entire purpose of the legislation if this court
were, in the face of such clearly stated intentions, to insist
on
arbitrators appointed by the CCMA to resolve unfair dismissal
disputes conducting those disputes in slavish imitation of the
procedures which are adopted in a court of law and subject to the
technical rules of evidence which apply in those courts.’
The principle that the rules of evidence should not be applied
slavishly and account should be taken of the nature of the
arbitration
proceedings is highlighted by the case of
Edcon Ltd v
Pillemer NO and Others,
9
where the Court in dealing with whether the Commissioner committed
gross irregularity by accepting hearsay evidence which was
in the
form of written statements held that:
‘
The
nature of the arbitration proceedings is characterized inter alia, by
the fact that disputes are intended to be resolved quickly
and
through relatively simple and non-technical procedures. . . In the
spirit of employing the minimum of legal formalities, particularly
bearing in mind that they were in its employ as managers, it could
have been relatively easy for the appellant to call them if
the
evidence was in dispute. The nature of their evidence was not of a
narrative nature but based on their belief and opinions.
No
meaningful prejudice could result from failure to call them. There
was nothing to alert the commissioner to the fact that she
should not
have regard to the evidence of Dwyer in particular. On the contrary,
if one has regard to the nature of the evidence,
the author of it,
the overall circumstances of the case and relatively informal nature
of the proceedings, I do not think the commissioner
can be criticized
for having regard to that evidence.’
In the present instance as stated earlier, if it was to be found
that the decision of the Commissioner was based on the hearsay
evidence and no other evidence, then I would hold that the decision
is not susceptible to interference because all the relevant
factors
upon which hearsay evidence may be admitted are present. In other
words the exceptions to the admission of hearsay as
set out in
section 3 of the Act were satisfied at the time such evidence was
admitted. The respondent indicated during the arbitration
hearing
that the two witnesses could not be found because they probably had
been deported back to their countries of origin.
In any case if that
evidence was regarded as forming the basis of the decision of the
Commissioner then it would have served
the purpose of corroborating
the version of the respondent that the applicant was guilty as
charged. That version as indicated
earlier is supported on the
probabilities even by the version of the applicant. In this respect
it is stated in the heads of
argument filed on behalf of the
applicant that:
‘
2.1 It
is common cause that the amount of R700,00 was handed over to
Mvundle, the driver of the team consisting of the Applicant
and
Mvundle;
2.2 It is basically unchallenged
that the money was in an envelope when it was handed to the
Applicant, end (sic) as such also to
Mvundle;
2.3 It is unchallenged that the
Applicant saw the money after Mvundle having returned to the Police
station and handing the envelope
over to the Applicant.’
It is therefore my view that in light of the above the applicant’s
application stands to fail.
Conclusion
In my view, even on the version of the applicant, it cannot be said
that the arbitrator’s arbitration award is unreasonable.
The
arbitrator weighed the evidence which was before him and on the
probabilities supported strongly by the common cause facts
came to
the conclusion that the applicant was guilty of soliciting and
accepting the bribery in the amount of R700, 00 from Grisham
and
Zanele.
If it was to be found as stated earlier that the decision of the
arbitrator was based on the hearsay evidence of the two absent
witnesses then such a deviation was in the circumstances of this
case pragmatic in the realisation of the speedy resolution of
the
dispute and accordingly justified.
In short the totality of the facts and the circumstances of this
case left the arbitrator with one conclusion and that is that
the
applicant was guilty of soliciting and receiving a bribe.
The facts of this case indicate very clearly that it was unnecessary
for the applicant to have filed this application and therefore
I see
no reason why the costs should not in law and in fairness follow the
results.
In the premises the applicant’s application is dismissed with
costs.
_____________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES:
For the Applicant: Martin Henning of J.L. Van der Walt
For the Respondent: Adv. M.A. Charlie
Instructed by: The State Attorney
1
Act
66 of 1995
2
[2007]
12 BLLR 1097
(CC).
3
The
defects envisaged in section 145 are as follows:
“
(
a
)
that the commissioner—
(i) committed misconduct in relation to the duties of
the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of
the arbitration proceedings; or
(iii) exceeded the commissioner’s powers; or
(
b
) that an award has been improperly obtained.”
4
[2010]
8 BLLR 824
(LAC).
5
Case
Number P192/10, unreported.
6
45
of 1998.
7
Case
No: JR 2134/2008,Unreported, 30 August 2010
8
(2000)
21 ILJ 1151 (LC), at para [26]. See also
Le Monde Luggage CC t/a
Pakwells Petje v Dunn NO and Others
(2007) 28 ILJ 2238 (LAC)
[17] – [18].
9
(2008)
29 ILJ 614 (LAC) at para [15].