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[2011] ZALCJHB 110
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Mphigalale v Safety & Security Sectoral Bargaining Council and Others (JR 2028/09) [2011] ZALCJHB 110; (2012) 33 ILJ 1464 (LC) (7 December 2011)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: JR 2028/09
In the matter between:
INSPECTOR
SIMON NDWELENI MPHIGALALE
…................................................
Applicant
and
SAFETY
& SECURITY SECTORAL
BARGAINING
COUNCIL
….........................................................................
First
Respondent
JAN
STEMMETT, N.O
…........................................................................
Second
Respondent
SOUTH
AFRICAN POLICE SERVICE
…....................................................
Third
Respondent
Heard
:
10 November 2011
Delivered
:
7 December 2011
Summary: Review proceedings – inconsistent application of
discipline – previous error did not require imposition of same
sanction - seriousness of offence of corruption by police officer
justified dismissal – review application dismissed
JUDGMENT
SAVAGE AJ
Introduction
This is an application to review and set aside an arbitration award
made by the second respondent (“the commissioner”)
on 15
July 2009 in which the dismissal of the applicant for corruption in
accepting R500 from an illegal immigrant was found
to be both
procedurally and substantively fair.
The
facts
The applicant was employed by the third respondent in 1987 as a
police inspector. He was dismissed from his employment on 23
April
2007 after having been found guilty of corruption in accepting R500
from an illegal immigrant named Ms Stabile Masomere
(“Ms
Masomere”) to secure the release of Ms Masomere and three
other illegal immigrants.
The applicant referred an unfair dismissal dispute against the third
respondent (“SAPS”) to the first respondent
where his
dismissal was found to be both procedurally and substantively fair.
Arbitration award
The SAPS called four witnesses at the arbitration hearing: Mr
Rendani Makani, the investigating officer in the criminal case;
the
chairperson of the disciplinary hearing, Senior Superintendant
Tuwani Mashadzha; and Ms Masomere and Ms Milka Muringi, both
of whom
are Zimbabwean citizens. The applicant testified for himself. In
finding the applicant guilty of corruption, the commissioner
found
that the applicant had no witnesses at the time of the incident and
that while there were some discrepancies between the
statements of
Ms Masomere and the evidence given by her at the arbitration
hearing, and in spite of him treating her evidence
with caution, her
evidence was “given in a straightforward and convincing manner
and that it was supported in all material
respects by the evidence
of Ms Muringi”. The commissioner accepted that there were
probably language difficulties when
she made her initial statements
to police officers who did not understand Shona.
The commissioner was not convinced that the applicant was not aware
that Ms Masomere and others were from Zimbabwe when he had
experience in the identification of Zimbabwean citizens and failed
to form a suspicion when they were found near the border fence
with
hand luggage normally associated with illegal immigrants. The
commissioner found it strange that the applicant was patrolling
the
border but was not curious to see what was in Ms Masomere and her
companions’ bags. Furthermore, while the applicant
contended
that Ms Masomere was fluent in Venda, the commissioner came to the
view that this did not appear to be the case at
the arbitration
hearing. In addition, the names of Ms Masomere and her companions
were typically Zimbabwean names which should
have raised the
applicant’s suspicion.
While the applicant claimed that an identity parade should have been
held in the matter, the commissioner found that this was
unnecessary
as the applicant had not disputed giving Ms Masomere and her
companions a lift.
The applicant had not advanced any convincing reason why Ms Masomere
and Ms Muringi would have a motive to give false evidence
against
him. In this regard, the commissioner found that Ms Masomere had
given her initial statements in 2005 and 2006 and had
persisted with
her version at the disciplinary and arbitration proceedings. The
commissioner rejected as highly improbable the
applicant’s
allegation that Ms Masomere and Ms Muringi had conspired with his
previous commander to bring the applicant
into disrepute, even if it
were true that the commander had a grudge against the applicant.
The commissioner handed down an award in which he found dismissal of
the applicant to have been procedurally and substantively
fair. He
concluded that dismissal was an appropriate sanction in that the
aggravating factors outweighed the mitigating factors
and the SAPS
could not reasonably be expected to continue to employ the
applicant. In considering the appropriateness of the
sanction, the
commissioner considered the applicant’s 19 years of service,
his clean disciplinary record, the impact of
dismissal, the
circumstances of the matter, the seriousness of the misconduct which
constitutes gross dishonesty and the impact
of the transgression on
the employment relationship.
On the issue of consistency, the commissioner concluded that the
sanction short of dismissal imposed in previous disciplinary
proceedings on two other employees, Inspector Nkawane and Constable
Bugana, was an error which did not justify the reinstatement
of the
applicant and that there was no evidence that the third respondent
had habitually or frequently condoned such misconduct
in the past.
He found that the third respondent would not be able to trust the
applicant to perform his duties without constant
supervision and
took into account the efforts of the SAPS to stamp out corruption
amongst its employees. The dismissal of the
applicant was
accordingly found to be substantively fair.
The commissioner found that “judged as a whole” the
applicant was given a fair opportunity to present his case at
the
disciplinary hearing and that the delay in finalising the enquiry
“did not cause any real prejudice”. The commissioner
rejected the applicant’s claim of collusion between the
chairperson of the disciplinary hearing and the disciplinary
officer. He was also not convinced that the applicant was prejudiced
by threats made to him by the disciplinary officer.
Grounds of review
The grounds of review raised by the applicant in his founding and
supplementary affidavits relate to the commissioner having
exceeded
his powers in making factual findings that did not correspond with
the evidence before him, including by accepting Ms
Masomere’s
evidence as probably true notwithstanding the glaring discrepancies
between her statements to the police and
her testimony during the
arbitration. Furthermore, the applicant contended that the
commissioner committed a gross irregularity
by finding that
reinstatement was not justified notwithstanding the inconsistent
application of discipline in similar circumstances
given that there
was “no evidence that the respondent had habitually and
frequently condoned such misconduct in the past”.
The
applicant also attacked the commissioner’s finding that the
SAPS would not be able to trust the applicant to perform
his duties
without constant supervision, on the basis that there was no
evidence led by the SAPS to this effect.
Evaluation
A commissioner is required to determine which of the conflicting
versions before him or her is more probable and in doing so
to make
some attempt to assess the credibility of the witnesses by reference
to any internal and external inconsistencies that
might exist, to
assess their reliability and to consider the probability or
improbability of each party’s version.
1
Faced with two mutually exclusive versions, the technique set out in
SFW Group Ltd and Another v Martell et Cie and Others
2
per Nienaber JA is to be applied:
“…
an
analysis of the probabilities of the evidence placed before him. In
so doing, I am satisfied that he took the steps necessary
to resolve
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a
number of peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts
in resolving factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed
issues a court must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.
As to (a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i)
the witness’ candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in
his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, (v) the probability or
improbability of
particular aspects of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying
about the same incident or events. As to (b), a witness’
reliability will depend, apart from the other factors mentioned under
(a) (ii), (iv) and (v) above, on (i) the opportunities she had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of the assessment of (a), (b) and (c)
the court
will then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging
it.”
3
It is clear that the commissioner considered the credibility and
reliability of the evidence tendered by witnesses at the arbitration
and that he undertook the materially different versions before him.
He considered the existence of some discrepancies between
Ms
Masomere’s statements made initially and the evidence given by
her at the arbitration and treated her evidence with
caution. His
finding that Ms Masomere’s evidence at the arbitration “was
given in a straightforward and convincing
manner and that it was
supported in all material respects by the evidence of Ms Muringi”
is not an unreasonable one based
on the evidence before him.
Similarly, his conclusion that the failure of the SAPS to hold an
identity parade was not material
was a reasonable conclusion on the
evidence before him given that the applicant had not disputed giving
Ms Masomere and her companions
a lift.
The commissioner’s further findings with regards to the
commission of the offence are also reasonable based on the material
placed before the commissioner. The applicant’s case is that
there was no direct evidence to prove that he had accepted
the money
and that he was not aware that Ms Masomere and others were from
Zimbabwe as they spoke Venda and gave a satisfactory
account of why
they were at the border. This Court does not sit as a court of
appeal. On a conspectus of the facts before the
commissioner, I am
satisfied that the decision made by him and the conclusions drawn
with regards to aspects of the evidence
are rationally connected to
the material before him. Furthermore, the commissioner applied the
appropriate legal principles and
considerations in dealing with the
materially different versions before him.
In applying his mind to the applicant’s evidence, the
commissioner concluded that he found there to exist aspects of the
applicant’s testimony which did not lead him to support the
applicant’s version of events. I am unable to fault the
approach taken by the commissioner with regards to his analysis of
the competing versions before him. His conclusions with regards
to
these competing versions fall clearly within the required band of
reasonableness. Having heard the evidence of witnesses,
the
commissioner was placed in a position to consider the credibility,
reliability, demeanour, candour, calibre, veracity and
cogency of
the witnesses and to assess the quality and integrity of such
evidence in weighing up the probabilities in the matter.
A review
court should not interfere with a credibility finding given that the
court, unlike the commissioner, lacks the advantage
of first-hand
observation of the witnesses and their demeanour, and where there is
no apparent basis from the record to justify
calling a
commissioner’s finding into question.
4
The applicant’s further ground of review relates to the
inconsistent application of discipline by SAPS and the
commissioner’s
conclusion that SAPS would not be able to trust
the applicant to perform his duties without constant supervision in
the absence
of evidence to this effect. The evidence before the
commissioner was that in a previous instance of corruption the
chairperson
had in error imposed a sanction short of dismissal upon
two other policemen. There was no evidence tendered at the
arbitration
hearing relating to the existence of any distinguishing
features which differentiated the previous decisions from the
decision
taken to dismiss the applicant. There was also no evidence
tendered of any steps taken by SAPS to reiterate to its employees
that corruption as an offence would lead in future to dismissal. The
commissioner concluded that the error of the chairperson in
imposing
a sanction short of dismissal in previous instances of corruption
did not justify the reinstatement of the applicant
and that there
was no evidence that the third respondent had habitually or
frequently condoned such misconduct in the past. He
took into
account that the SAPS would not be able to trust the applicant to
perform his duties without constant supervision as
well as efforts
to stamp out corruption amongst its employees.
Conradie JA in
De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation & Arbitration and Others
5
stated:
‘…
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. That is why
supermarket shelf packers who steal small items are routinely
dismissed. Their dismissal has little to do with society's moral
opprobrium of a minor theft; it has everything to do with the
operational requirements of the employer's enterprise’.
This ‘sensible operational response to risk management’
is one which must be undertaken fairly. In determining whether
a
decision to dismiss is fair, a commissioner must take cognisance of
the fact that the discretion to dismiss lies primarily
with the
employer and interference with the sanction imposed should not be
lightly contemplated, with a measure of deference
afforded to the
sanction imposed by the employer
6
.
The Code of Good Practice: Dismissal establishes a guideline to test
the fairness of a dismissal, which includes consideration
as to
whether “the rule or standard has been consistently applied by
the employer”. As a general rule, fairness requires
that like
cases be dealt with alike,
7
whether in the consistent enforcement of a rule or in the imposition
of a penalty.
8
As pointed out by Brassey in ‘The Dismissal of Strikers’
(1990) 11 ILJ 213 at 229:
‘…
The
parity principle, a basic tenet of fairness, requires that like cases
should be treated alike: if two employees are caught committing
much
the same wrong, one should not be disciplined if the other goes free;
nor, if their personal circumstances are much the same,
should one be
more severely punished than the other’.
Inherent in making the decision as to whether to dismiss or not,
there exists inevitably the potential for some degree of
inconsistency.
Conradie JA in
SACCAWU and Others v Irvin &
Johnson
9
found that:
‘…
the
best that one can hope for is reasonable consistency. Some
inconsistency is the price to be paid for flexibility, which requires
the exercise of a discretion in each individual case. If a
chairperson conscientiously and honestly, but incorrectly, exercises
his or her discretion in a particular case in a particular way, it
would not mean that there was unfairness towards other employees.
It
would mean no more than that his or her assessment of the gravity of
the disciplinary offence was wrong. It cannot be fair that
other
employees profit from that kind of wrong decision….a wrong
decision can only be unfair if it is capricious, or induced
by
improper motives, or worse, by a discriminating management policy’
.
10
The LAC continued:
‘…
it
must be so that an employer cannot be expected to continue repeating
a wrong decision in obeisance to a principle of consistency…
While
the
proper course in such cases is to let it be known to employees
clearly and in advance that the earlier application of disciplinary
measures cannot be expected to be adhered to in the future. Fairness,
of course, is a value judgment, to be determined in the circumstances
of the particular case, and for that reason there is necessarily room
for flexibility, but where two employees have committed the
same
wrong, and there is nothing else to distinguish them, I can see no
reason why they ought not generally to be dealt with in
the same way,
and I do not understand the decision in that case to suggest the
contrary. Without that, employees will inevitably,
and in my view
justifiably, consider themselves to be aggrieved in consequence of at
least a perception of bias’
.
11
In
Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others,
12
Van Niekerk J reiterated that there existed no confusion in the
jurisprudence as it relates to the consistency requirement, nor
any
conflict between the decisions of the Labour Appeal Court in
SACCAWU
and Others v Irvin & Johnson
and
Cape Town City Council v
Masitho and Others
.
13
Nugent JA in
Masitho
cites with approval the conclusion in
SACCAWU that an employer ‘“cannot be expected to
continue repeating a wrong
decision in obeisance to a principle of
consistency’ but indicates that the proper course is to let
employees know ‘“clearly
and in advance that the earlier
application of disciplinary measures cannot be expected to be
adhered to in the future’.
14
The evidence before the commissioner was that the chairperson’s
decision in respect of the two previous instances of corruption
by
police officers had been one made in error. Applying the judgment in
SACCAWU
, the SAPS is not required to repeat a decision made
in error or one which is patently wrong. This is all the more so
given the
nature of the misconduct committed. In
S
v Shaik and Others
15
the Constitutional
Court warned that corruption
is
‘antithetical
to the
founding values of our constitutional order.’ Similarly, in
South African Association of
Personal Injury Lawyers v Heath and Others
,
2001(1) SA 883 (CC) this Court held that:
‘
[c]orruption
and maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They undermine
the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms. They
were
the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked and
unpunished they will pose a serious threat to our democratic State.’
In
Glenister v President of the Republic of South Africa and
Others.
16
the Constitutional Court held:
‘
Corruption
has
become a scourge in our country and it poses a real danger to our
developing democracy. It undermines the ability of the government
to
meet its commitment to fight poverty and to deliver on other social
and economic rights guaranteed in our Bill of Rights...
For our
country to win the war against these serious crimes, we need to
enhance the capacity of the police to prevent, combat and
investigate
these crimes and other national priority crimes. Strengthening the
ability and the capacity of the SAPS to address
the scourge of
corruption
and
other national priority crimes is unquestionably a legitimate
governmental purpose’.
17
Corruption by a police officer, employed in a position of trust and
with a duty to perform his or her functions in the interest
of
society and in accordance with the fundamental values of the
Constitution, is a material factor to be considered in determining
the appropriateness of the sanction to be imposed. Not only is it a
“sensible operational response to risk management”
but
it provides a sound reason to justify a finding that the imposition
of the sanction of dismissal was fair in the circumstances.
Where the case of one employee is distinguished from another in
circumstances in which they have engaged in the same misconduct,
there must exist sound reasons for treating the employees
differently,
18
such as on the basis of their respective records or on the basis of
other material factors.
19
Given the nature of the serious misconduct committed, his position as
a policeman and the impact of the misconduct on society,
I am
satisfied that the finding of the commissioner that dismissal was a
fair sanction was a reasonable conclusion made with regard
to and
based on the evidence before him. Dismissal amounted to ‘sensible
operational response to risk management’ given
that the
misconduct is “completely
indefensible on
any ground”
(as per Toyota SA Motors (Pty) Ltd v
Radebe and Others
20
)
,
more so when perpetrated by an employee from whom an employer is
entitled to expect trust and honesty in the performance of its
functions.
This Court, in numerous previous decisions,
has viewed dishonesty in a serious light and has come to the
conclusion in most instances
that it results in a breakdown of the
trust relationship between the parties.
21
I am accordingly satisfied that the decision of the commissioner
that the dismissal of the applicant was fair, in spite of the
existence of a previous inconsistent sanction imposed on two
policemen previously for the same misconduct and mitigating factors,
was reasonable. It follows therefore, given the nature of the
misconduct committed by the applicant that the SAPS “cannot
be
expected to continue repeating a wrong decision in obeisance
to a principle of consistency”, even in spite of there being
no evidence of notice by the employer to its employees that
employees who were found guilty of corruption would henceforth face
dismissal. This is particularly so given the criminal nature of the
misconduct, the fact that it was committed by a person employed
in
the trusted office of policeman, as a result of the severe impact
that corruption has upon society and the importance of an
appropriate operational response when imposing an appropriate
sanction in the current circumstances. Objectively, there exists
little need to remind those officials employed in positions of trust
and responsibility in society that fundamentally dishonest
practices
may result in dismissal. This must logically follow from employment
in such responsible a position. Were this Court
to find that it was
incumbent upon the commissioner to have imposed a lesser sanction
only due to a two previous incorrect decisions
(even when other
employees may have been dismissed for corruption) and simply because
no notice to employees had been given by
the employer that in future
corruption will lead to dismissal, would suggest that employees need
to be reminded of the very core
values of honesty and integrity so
fundamental to the performance of their functions. I am satisfied
that such a conclusion would
be unwarranted and would only serve to
minimise the seriousness and effect of the scourge of corruption
currently faced by our
society.
In
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
22
Molahlehi J held:
‘
..
.the presence of dishonesty tilts the scales to an extent that even
the strongest mitigating factors, like long service and a
clean
record of discipline are likely to have minimal impact on the
sanction to be imposed. In other words whatever the amount
of
mitigation, the relationship is unlikely to be restored once
dishonesty has been established in particular in a case where the
employee shows no remorse. The reason for this is that there is a
high premium placed on honesty because conduct that involves
corruption by the employees damages the trust relationship which
underpins the essence of the employment relationship’.
The conclusion reached by the commissioner therefore that the SAPS
would not be able to trust the applicant to perform his duties
without constant supervision, given the nature of the misconduct
committed by him and in spite of his mitigating circumstances
is not
an unreasonable conclusion on the facts before the commissioner. It
is in fact, a rational conclusion drawn from the evidence
and
serious nature of the misconduct committed.
In conclusion, it is not the correctness of the commissioner’s
decision that this court must determine on review. In finding
the
dismissal of the applicant to be procedurally and substantively
fair, I find that the result falls within the band of reasonable
decisions which stood to be made by the commissioner based on the
evidence before him and that there exists no basis on which
to
interfere with such decision.
Costs
The court has a broad discretion, established by section 162 of the
LRA, to make an order for costs according to the requirements
of the
law and fairness. The fact that the applicant has not been
successful in this application militates in favour of a costs
order
in favour of the SAPS. There are no reasons before me to suggest why
costs in this matter should not follow the result.
Order
Accordingly,
I make the following order:
The application is dismissed with costs.
_______________________
K M Savage
Acting Judge
APPEARANCES
FOR THEAPPLICANT: L Pillay
Instructed by Salijee Du Plessis Van der Merwe Inc.
THIRD RESPONDENT: M S Mphahlele
Instructed by the State Attorney, Pretoria
1
Isaacs
v Education Labour Relations Council
(unreported) C460/2008).
2
2003
(1) SA 11
(SCA).
3
At
paragraph 5 of the judgment.
4
See
Isaacs v Education Labour Relations Council
(unreported)
C460/2008 at para 24.
5
(2000)
21 ILJ 1051 (LAC).
6
At
page 403 see too
Avril Elizabeth Home /
CCMA
[2006] 9 BLLR 833
(LC).
7
Nugent
AJA in
Cape Town City Council v Masitho and others
(2000) 21
ILJ 1957 (LAC).
8
Du
Toit et al
Labour Relations Law 5
th
ed (Lexis Nexis 2006) at page 401.
9
(1999)
20 ILJ 1957(LAC).
10
At
para 29.
11
At
751D F.
12
[2009]
BLLR 1128(LC)
at para 12.
13
(2000)
21 ILJ 1957(LAC).
14
At
para 14.
15
[2008] ZACC 7
;
2008
(5) SA 354
(CC).
16
2011
(3) SA 347
(CC) at para 57.
17
At
para 58.
18
Rustenburg
Platinum Mines Ltd (Bafokeng Rasimone Platinum Mine) v CCMA &
others
[2006] 11 BLLR 1104
(LC).
19
National
Union of Mineworkers & Others v Amcoal Collieries &
Industrial Operations Ltd
(1992) 13 ILJ 1449 (LAC) at 1453B;
National Union of Mineworkers & Others v Free State
Consolidated Gold Mines (Operations) Ltd - President Steyn Mine;
President
Brand Mine; Freddies Mine
(1993) 14 ILJ 341 (LAC) at
357J; Le Roux & Van Niekerk: South African Law of Unfair
Dismissal (Juta 1994)110-111.
20
(2000)
21 ILJ 340 (LAC) at 344D-G.
21
City
of Cape Town v South African Local Government Bargaining Council and
Others
(2011) 32 ILJ 1333 (LC) at para 23.
22
[2007] ZALC 93
;
[2008]
3 BLLR 241
(LC)
at para 42.