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[2012] ZALCJHB 1
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Director General; Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others (JR 948/09) [2012] ZALCJHB 1; [2012] 5 BLLR 468 (LC); 2012) 33 ILJ 1649 (LC) (6 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JR 948/09
In the matter between:
THE DIRECTOR GENERAL; DEPARTMENT
OF PUBLIC WORKS
…....................................................................................
First
Applicant
MEC, DEPARTMENT OF PUBLIC WORKS
LIMPOPO PROVICE
…...............................................................................
Second
Applicant
and
THE PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
….........................................................................
First
Respondent
DANIEL SEOPELA N.O
…......................................................................
Second
Respondent
SELLO JEREMIAH TSELANE
…...............................................................
Third
Respondent
Heard
:
01 December 2011
Delivered: 6 January 2012
Summary
:
Review arbitration
award. Commissioner relying on defence not raised. Commissioner
relying on dictionary definition of “corruption,”
instead
of the definition of the Prevention and Combating of Corruption
Activities Act.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MOLAHLEHI J
Introduction
This is an application to review and
set aside the arbitration award made by the second respondent (the
arbitrator) under case
number 760-08/09 dated 21 February 2009. In
terms of the arbitration award, the arbitrator found the dismissal
of the third respondent
(the respondent) to have been substantively
unfair and ordered that he be reinstated.
Background facts
The respondent who was prior to his
dismissal employed by the applicant as a horticulturalist was
dismissed for misconduct related
dishonesty. The act of misconduct
for which the applicant was charged with related to a tender for the
planting of instant lawn
on the premises of the applicant. The
respondent had been requested by those in the authority to seek
quotations from various
dealers for the purposes of purchasing
instant lawn and laying it on the premises of the applicant.
The only two quotations which the
respondent received were from two companies known as Die Drift (the
Drift) and Organic Compost.
The tender was awarded to the Drift.
According to Mr Van Der Merwe, the
owner of the Die Drift, he quoted the applicant R8.00 per square
meter for the instant lawn.
After the submission of the quotation he
received a call from the respondent wherein it was suggested that
the quotation should
be adjusted upwards with the amount of 50c per
meter square. Mr Van Der Merwe increased his price by 50c as advised
by the respondent.
The tender was subsequently awarded
to the Drift and thereafter the respondent delivered the purchase
order at Mr Vander Merwe’s
farm. During that visit the issue
of the 50c was raised again by the respondent, according to Mr Van
Der Merwe. The respondent
is said to have claimed that in total the
50c for which the tender was increased amounted to R3000,00 and that
he would have
liked to have the money as soon as possible.
Mr Van Der Merwe promised to pay the
respondent as soon as the applicant paid him for his services. He
then reported the matter
to one of his former colleague in the South
African police, Mr Harold. An arrangement was then made for the
respondent to meet
with Mr Van Der Merwe for the purposes of
effecting the payment demanded by the respondent and to arrest the
respondent thereafter.
In the meantime, Mr Harold
photocopied the notes in the amount of R3000,00 which was to be used
as proof of the amount paid to
the respondent. The R3000,00 was
placed in an envelope which Mr Van Der Merwe would hand to the
respondent when they meet at
Wimpy restaurant. It was alleged that
on arrival at Wimpy, the respondent enquired from Mr Van Der Merwe
whether he had the money
with him at which point the white envelope
with money in it was placed on the table pushed towards the
employee.
Mr Harold who at the time was the
Superintendent in the SAPS testified that on the day in question
having made the arrangement
for the arrest of the respondent as soon
as the money had exchanged hands, observed how the respondent and Mr
Van der Merwe were
looking for a table to seat as soon as they
entered Wimpy restaurant. At the appropriate time, Mr Harold
accompanied by two of
his colleagues entered Wimpy and arrested the
respondent after comparing the copy of the amount they had with that
which was
in the envelope. The respondent refused to compare the
amount in the envelope with the photocopied money because he
contended
that the envelope belonged to Mr Van der Merwe.
The respondent does not dispute
having visited Mr Van Der Merwe at his farm but says that the reason
for this was to deliver the
original purchase order. Thereafter he
received a call from Mr Van Der Merwe enquiring as to when he would
be going to Polokwane.
The respondent informed him that he was going
to Polokwane the following day. Mr Van Der Merwe requested him to
call as soon
as he arrives in Polokwane.
As arranged, the respondent called Mr
Van Der Merwe on arrival in Polokwane and was advised to meet at
Wimpy. On arrival at Wimpy
Mr Van Der Merwe enquired from the
respondent as to whether he would have something to drink and at
that point Mr Van Der Merwe
stood up, placed a white envelope on the
table and proceeded to the counter. He was then suddenly surrounded
by the police who
confronted him about white envelope. He informed
them that the envelope belonged to Mr Van der Merwe. The respondent
says that
as he had pointed out to the police he saw Mr Van der
Merwe leaving the restaurant but the police did nothing to stop him.
The
respondent was then arrested.
The applicant was charged with
corruption as defined by the Prevention and Combating of Corruption
Activities Act of 2000. It
seems to me that it is apposite that the
provisions of section 4 of the Prevention of Corruption Act need to
be quoted in full.
It reads as follows:
‘
Section
4. Offences in respect of corrupt activities relating to public
officers.-
Any-
Public
officer who, directly or indirectly, accepts or agrees or offers to
accept any gratification from any other person, whether
for the
benefit of himself or for the benefit of another person: or
Person
who, directly or indirectly, gives or agrees or offers to give any
gratification to public officer, whether for the benefit
of that
public officer or for the benefit of another person,
In
order to act, personally or by influencing another person so to act,
in a manner-
that
amounts to the-
(aa)
illegal, dishonest, unauthorised, incomplete, or biased; or
(bb)
misuse or selling of information or material acquired in the
course of the,
exercise,
carrying out performance of any powers, duties or functions arising
out of a constitution, statutory, contractual or any
other legal
obligations,
that
amounts to-
(aa)
the abuse of a position of authority;
(bb)
a breach of trust; or
(cc)
violation of a legal duty or a set of rules;
designed
to achieve an unjustified result; or
that
amounts to any other unauthorised or improper inducement to do or
not do anything,
is
guilty of the offence of corrupt activities relating to public
officers.’
The grounds for review
The applicant contends that the
arbitrator committed a number of gross irregularities that he:
failed to apply his mind or properly
applied his mind to the evidence before him
ignored and or improperly ignored
the evidence properly placed before him.
reached a conclusion which a
reasonable arbitrator in applying his mind and properly considering
all aspects of the dispute
before him could not reach
failed to consider the provisions of
the
Prevention and Combating of Corrupt Activities Act 12 of 2004
.
The applicant further contended that
the arbitrator failed to weigh the probabilities in the context
where there existed two conflicting
versions.
The arbitration award
The arbitrator in his analysis
identified the issue he had to deal with to be concerning whether
the conduct of the respondent
amounted to corruption. In this
respect, the arbitrator, relying on the definition of the word
‘corruption’ as set
out in the Oxford dictionary said
corruption is ‘dishonest or illegal behaviour, especially of
people in authority or the
act of making somebody change from moral
to immoral standards of behaviour.’
The arbitrator rejected the version
of Mr Van der Merwe seemingly on the basis that the respondent could
not have sought a bribe
from him because he (Van der Merwe) had
previously received a tender to plant 6000m
2
of lawn and
that even at the stage the two dealt with each other.
The other basis upon which the
arbitrator rejected the evidence of Mr Van der Merwe is that he
never said that he sent a tender
of R8,00 and later withdrew it and
sent it with the increase of 50c.
In arriving at the conclusion that
the respondent was innocent, the arbitrator took into account the
following facts:
Mr Van Der Merwe reported the matter
to the applicant only after the tender was awarded and that if he
(Mr Van der Merwe) wanted
to fight corruption then he should have
reported the matter to the applicant immediately he was approached
by the employee.
the respondent could not have bribed
Mr Van der Merwe because he was a person who had no say in the
issuing of tenders.
the reason for entrapping the
respondent and reporting the matter to the applicant was because Mr
Van der Merwe wanted to carry
favour with the applicant for
purposes of further tenders. This, the arbitrator found that was
the reason for arranging the
meeting at Wimpy.
In relation to the role played by the
police, the arbitrator found that, those involved in the arrest of
the respondent were involved
in an ‘evil game’ and that
the respondent was correct in refusing to compare the money in the
envelop and the copies
which the police had because that was not his
money.
The arbitrator in his arbitration
award says that he does not reject the credibility of the police in
relation to their version
of the events but at the same time seems
to accord no weight to that evidence because according to him the
‘prisons are
also filled with people who are not supposed to
be there.’
Evaluation
The applicant challenges the
arbitrator's award on the basis of gross irregularity as envisaged
in
section 145(2)
of the LRA
1
.
Gross irregularity as a ground for review may, as was indicated in
Goldfields Investment v
City of Johannesburg,
2
take place in two ways. It may
manifest itself in the form of latent or patent defect. The patent
irregularities can be identified
from the manner in which the
arbitration proceedings were conducted, for instance where the
arbitrator refuses to allow the right
to call witnesses or to
cross-examining witnesses. And patent irregularity can be determined
from analysing the reasoning of
the Commissioner. This is a defect
that occurs in the mind of the arbitrator and can be observed from
the analysis of his or
her reasoning.
Generally speaking, latent defects
occur where the Commissioner fails to apply his or her mind to the
evidence or the facts properly
placed before him or her. The latent
defects occur also where the arbitrator misconceives the issues he
or she is supposed to
deal with. It may also occur where the
arbitrator fails to understand or misconceive the scope of his or
her mandate.
Both latent and patent irregularities
could, depending on their extent and materiality, vitiate the
arbitration award irrespective
of the reasonableness of the outcome
of the arbitration award. In that regard, the arbitration award will
not be vitiated by
the unreasonableness of the outcome of the
arbitration award but by the irregularity committed by the
arbitrator. In other words,
the arbitration award would be set aside
because of the defect in the reasoning process rather than the
reasonableness of the
arbitration award.
3
The critical question in determining
whether to interfere with the arbitration award because of latent or
patent defects are,
as was stated in
Goldfields
Investment
and Another v City of Johannesburg and
Another
,
4
to determine whether the defect is so
serious as to prevent the trial of the issues resulting in the
denial of a fair hearing
of the affected party. In this regard,
Schreiner J dealing with the same issue in that case observed that:
‘
.
. .
If
it did prevent a fair trial of the issues then it will amount to a
gross irregularity. Many patent irregularities have this effect.
And
if from the magistrate’s reasons it appears that his mind was
not in a state to enable him to try the case fairly this
will amount
to a latent gross irregularity. If, on the other hand, he merely
comes to a wrong decision owing to his having made
a mistake on a
point of law in relation to the merits, this does not amount to gross
irregularity.’
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
5
the Constitutional Court per Ncobo J
held that that it cannot be said to be fair when a commissioner
fails to have regard to the
material facts before him or her as in
doing so he or she fails to perform his or her mandate.
In the present instance, the
arbitrator failed to appreciate the material issues he had to deal
with and thus his arbitration
award is vitiated by that latent
defect. In the first instance, the arbitrator failed to appreciate
that he was faced with having
to resolve the two conflicting
versions. The version of the applicant as presented before the
arbitrator was that the respondent
had asked Mr Van der Merwe for
payment of R3000,00 arising from the tender that had been awarded to
him and thus committing an
offence of corruption. The respondent on
the other hand denied all allegations levelled against him by the
applicant.
It was thus the duty of the
arbitrator to resolve such conflicting versions through the use of
the appropriate test. It is trite
that when faced with two
conflicting versions the enquiry which the arbitrator has to conduct
is that which was set out in
Stellenbosch
Farmers' Winery Group Ltd. and Another v Martell & Kie SA and
Others.
6
The enquiry set out in that case
essentially entails assessing and making a finding on the
credibility of witnesses including
the probabilities to determine
where the truth lies in the matter. It would seem to me that the key
aspect of this inquiry is
whether the probabilities favour the party
that bears the onus of proof. It is also important to note that
whilst the credibility
of a witness is in an extricable manner bound
to the consideration of the probabilities of the case, the
arbitrator should resort
to credibility where the probabilities
fails to point which version embraces the truth.
Because of his failure to appreciate
the task created by the conflicting versions, the arbitrator never
came closer to performing
his duties as was expected.
The reading of the record reveals
that the version of Mr Van der Merwe, concerning the testimony that
the respondent approached
him firstly with the advice that he should
add a 50c on his tender and later claimed the same amount from him,
is more probable
than that of the respondent which is a simple
denial. The fact that Mr Van der Merwe never submitted a tender of
R8.50 is immaterial
in the assessment of whether the respondent
committed misconduct in terms of the Act.
It is also apparent that in
approaching the evidence before him, the arbitrator adopted a piece
meal approach in determining whether
the respondent was guilty of
the offence of corruption. The proper analysis of the totality of
the evidence before the arbitrator
presented a version which was
consistent with the applicant’s contention that the respondent
was guilty of corruption.
In this respect, it makes no sense in the
first instance why Mr Van der Merwe would accuse the respondent of
having told him
to adjust his tender submission by 50c and secondly
say that the respondent subsequently raised the 50c issue when he
delivered
the purchase order at his farm. That chain of events
which, in my view, establishes that in all probabilities the
respondent
did ask for the amount of R3000,00 which is 50c x 6000mt
lawn
2
of the instant lawn, continued thereafter with the
meeting at Wimpy restaurant.
The fact that the respondent did not
take the money which was placed on the table by Mr Van der Merwe
seems to me irrelevant in
the totality of the evidence and the
circumstances of the case against him.
In my view, the arbitrator would have
reached a different conclusion had he applied his mind to the
definition of corruption as
set out in the Act. Had he applied his
mind to the definition in the Act, he would have taken into account
and accorded the appropriate
weight to the fact that the respondent
was given the responsibility of facilitating submission of the
quotation necessary for
the determination of the tender. In that
regard, the respondent was privy to the information about how many
people submitted
their tenders and the price they quoted therein.
Thus considered with all other facts, the fact that he did not have
a say over
the awarding of the tenders could not rule out the
possibility of wanting and receiving gratification as envisaged by
the Act.
I have already indicated that the
arbitrator resorted to ignoring the provisions of the Act and
resorted to the dictionary definition.
In approaching the definition
of corruption in the manner he did, the arbitrator adopted a narrow
definition of the misconduct
the respondent was accused off and thus
committed a gross irregularity in that he operated outside his
mandate. He accordingly
exceeded his powers. In considering whether
the respondent was guilty of corruption, the arbitrator ought to
have had regard
to the fact that the reason for dismissing the
respondent was because he had contravened the provisions of the Act
which makes
the misconduct much more serious than any other offence
that may be provided for in the disciplinary code.
The arbitrator’s arbitration
award is further vitiated by the fact that he gave the respondent
the benefit of the defence
he never pleaded. It was never the case
of the respondent during the arbitration proceedings that the
charges against him arose
from an improper or unfair entrapment by
the applicant. There is no evidence that the applicant knew or was
part of the plan
to arrest the respondent as soon as he received the
amount in question. The arbitrator seems to have misunderstood the
facts
that were presented before him. The facts indicate very
clearly that the applicant came to know about the conduct of the
respondent
after the event in as far as his arrest by the police can
be categorised as an entrapment.
Even if this was to be regarded as
entrapment, the arbitrator seems to have also missed the point that
not every entrapment is
necessarily improper and unfair. In this
respect, the arbitrator further failed to appreciate that the
defence of entrapment
is generally based on the principle that the
offender was induced to commit an unlawful act by those who set up
the trap. The
notion of entrapment has been used largely in criminal
law where the complaint by the offender would be that he or she was
induced
into committing an offence by the law enforcement officers.
In labour matters, depending on the
facts and the circumstances of a given case, an employee could
escape liability on the basis
that the entrapment was inappropriate
and thus the dismissal arising from such circumstances amounted to
unfair dismissal.
In the present instance as indicated
earlier, the respondent did not and correctly so, rely on entrapment
as a defence or mitigating
factor. There is also no evidence that
the respondent was induced by Mr Van der Merwe to inflate the amount
of the tender. The
analysis of the arbitrator’s award is that
the arbitrator arrived a conclusion based on defence which was never
pleaded
by the respondent neither was there evidence upon which such
a defence could be founded.
In dealing with the issue of the
Commissioner basing his finding on a defence not pleaded, this Court
in
Rustenburg Platinum
Mines (Rustenburg Section) v CCMA and Others,
7
held that:
‘
In
essence the conclusion of the commissioner amounted to a defence of
"incitement" on the part of the respondents. It
is
unjustified and in a technical sense the commissioner committed a
gross misconduct in relying on a defence that was not pleaded
nor
articulated by Modisakeng in his testimony. It is a defence which was
never brought to the attention of applicant and accordingly
the
applicant was denied the opportunity to respond to the defence.
Reliance on this defence gave the employees an unfair advantage
.’
The principle governing reliance on a
defence not pleaded was set out in the unpublished judgment of
Matla
Coal Ltd v Commissioner for Mediation and Arbitration and Others
8
,
where Van Dijkhorst AJA said:
‘
Where
a defence is not pleaded and not articulated in evidence it is not a
defence and a Court errs when that “defence”
is made a
reason for its conclusion. The essence of our procedure is to give
each party to a dispute a fair opportunity to put
his or her case and
meet the allegation made by the other party. To this end there are
pleadings which define and therefore give
fair warning of the issues
in dispute.’
Again even if the conduct of Mr Van
der Merwe and the police was to be regarded as entrapment, it has to
be noted that the applicant
was not party to that process. The
applicant acted against the respondent after the event. The
applicant instituted the disciplinary
proceedings after it received
information regarding the conduct of the respondent. In any event,
if the converse was to be true
the conclusion would still fall short
of producing a fair decision as the arbitrator failed to consider
whether in the circumstances
of this case the entrapment was fair
and appropriate.
In the
Cape
Town City Council v SAMWU and Others
9
case, the court held that entrapment
is permissible in the labour market but traps must be conducted
fairly and in accordance
with the requirements of the law.
In light of the above, I am of the
view that the arbitration award of the arbitrator stands to be
reviewed and set aside. I do
not however belief that costs should
follow the results.
In the premises, the following order
is made:
The arbitration award of the
second respondent is reviewed and set aside with no order as to
costs.
The arbitration award is
substituted with the following award:
‘
(a) The
dismissal of the applicant is fair and his claim of unfair dismissal
is dismissed.’
___________________
Molahlehi J
Judge of the Labour Court of South
Africa
APPEARANCES:
FOR THE APPLICANTS: Adv A P Laka
instructed by the State Attorney
FOR THE THIRD RESPONDENT: Adv C
Prinsloo instructed by Du Toit Attorneys.
1
Section
145 (2) of the LRA provides:
(2) A defect
referred to in subsection (1), means- (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.
2
1938
TPD 551
3
See
Sasol Mining (Pty) Ltd v Commissioner Ngeleni and Others
[2011] 4 BLLR 404
(LC). For a detailed discussion on the difference
between process related and outcome based review see Adv Myburgh;
‘Determining
and Reviewing Sanction after Sidumo’;
Industrial Law Journal
(2010) 31 ILJ 16.
4
1938
TPD 551
at 560.
5
[2007]
12 BLLR 1097
(CC).
6
2003
(1) SA 11
(SCA).
7
[2007]
JOL 19298
(LC); (2007) 28 IL 1107 (LC) at para 28.
8
case
number JA33/04 at page 6. .
9
[2000]
11 BLLR 1239
(LC).