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[2012] ZALCJHB 38
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POPCRU obo Ndokweni v Maritz NO and Others (JR 2777/09) [2012] ZALCJHB 38 (3 May 2012)
REPUBLIC OF SOUTH AFRICA
the labour court of South Africa, JOHANNESBURG
judgment
Reportable
case no: JR 2777/09
In the matter between:
POPCRU
obo FB NDOKWENI
….....................................................................
Applicant
and
B MARITZ
N.O
….................................................................................
First
Respondent
THE
MINISTER FOR SAFETY AND SECURITY
THE
SAFETY AND SECURITY BARGAINING
…..........................
Second
Respondent
BARGAINING
COUNCIL (“SSSBC”)
…............................................
Third
Respondent
Heard
:
03 February 2012
Delivered
:
03 May 2012
Summary: Review arbitration award. Test for application of
circumstantial evidence
JUDGMENT
MOLAHLEHI J
Introduction
This is an application to review and set aside the arbitration award
made by the first respondent (the arbitrator) under case
number PSSS
514-08/09 and dated 24 May 2009. The applicant (the employee) who
prior to her dismissal was employed as a constable
in the employ of
the second respondent and stationed at George in the Cape, was
dismissed for misconduct related to contravention
of the provision
of section 40 of the Police Act read with the Police Services
Disciplinary Regulations.
The initial incident that led to the charges against the employee
arose from the investigation into a report about a fraud scheme
concerning cellular phones in the George area. The complaint about
the alleged cellular phone fraud pointed to two women who
were
apparently using forged identity documents to collect cellular
phones from an international courier.
The investigation into the alleged cellular phone fraud was
conducted by Mr Titus from the third respondent. On 22 September
2007 on arrival at the premises of the international courier, he
observed a woman (who is this judgment hereafter is referred
to as
“the first suspect”) who was busy talking to one of the
managers’ walking away as soon as she saw him.
He followed the
first suspect to the car park. On his way following the suspect to
the car park Mr Titus was confronted by another
woman (who is this
judgment hereinafter is referred to as “the second suspect”)
who apparently came out of a car
that was parked in the parking
area. It would appear that in the course of the interruption by the
second woman the first suspect
managed to run away.
When Mr Titus inquired from the second suspect about the car keys of
the car she was in, she informed him that the keys were
taken away
by the one first suspect. In searching the woman Mr Titus found
three cell phones on her. The second suspect was arrested
and
searched by a female police officer, Ms Salmon before she could be
locked in the cell. After searching her officer Salmon
reported that
she found only a wallet and no keys on the suspect.
Later in the afternoon at about 05:10 PM, Mr Titus received a phone
call from the applicant employee informing him that she had
the
previous night collected the car keys from officer Salmon.
On arrival the following day, Mr Barense informed Mr Titus that he
had seen the employee in the car belonging to the suspects
and when
he enquired from her what she was doing in the car she said the
suspect had requested her to collect something for her
from the car.
The version of the respondent is that when Mr Titus looked in the
car at the time he took the suspect to there to check on a
document
he discovered that the two bags went missing.
It was on the basis of the above that the applicant was charged with
three acts of misconduct. The charges against the applicant
were
formulated in terms of the provisions of section 40 of the Police
Act,
1
read with the South African Police Services Regulations and
specifically regulation 20(p), (q) and (z). The essential aspects
of
the charges against the applicant were that she removed exhibits in
the form of two bags which had been left in the car registration
CAW
338822. The exhibits were part of the evidence which the third
respondent intended using in the investigation of a fraud
case
against a syndicate involved in the theft of cellular phones. One of
the suspects involved in the syndicate was in custody
and the car in
question belonged to her. The applicant was also charged with
defeating the ends of justice in that she was alleged
to have
attempted to prevent further investigation of the fraud case
involving the syndicate.
At the conclusion of the disciplinary hearing the employee was found
guilty and dismissed. The employee's internal appeal against
the
outcome of the disciplinary hearing was unsuccessful. And the
employee being unhappy with the internal processes that led
to the
termination of her employment referred an alleged unfair dismissal
dispute to the third respondent.
Grounds for review
The applicant contends that the arbitrator committed gross
irregularity or exceeded his powers in concluding that Ms Salmon was
no more than a causal actor in the circumstances of the case. The
applicant further contends that the arbitrator in accepting
the
version of Mr Titus that the vehicle was locked at the time it was
towed from the scene failed to apply his mind properly.
It was
further submitted on behalf of the applicant that the arbitrator
failed in the exercise of his duty to apply the appropriate
legal
test in determining that the only person who had the keys to the
vehicle was the applicant.
The arbitrator's award
The arbitrator in his analysis of the facts before him starts off by
accepting the version of the second respondent that the
car in
question was locked at the time it was taken to the police station.
He further accepted that although the testimony of
Mr Branden and Mr
Titus were at variance in describing what was in the car namely the
nature of the two bags in the car the applicant
was responsible for
removing the exhibits.
At paragraph 72 of the arbitration award the arbitrator says:
‘
72. I
would agree with Mr Visser that Salman should have been called as in
the circumstances she played a central role. In the disciplinary
Mr
Visser did challenge her evidence about the person from whom she had
received the keys but on a conspectus of the evidence it
would appear
that she was no more than a casual actor in the events.’
In arriving at the conclusion that the applicant was involved in the
removal of the bags the arbitrator reasoned that the applicant
failed to give a satisfactory account as to why “she allowed
herself to get involved with the car and the suspect. I would
have
expected her to have recorded the call about the key in the
occurrence book and to have left the matter for Titus to sort
out in
the morning.”
Evaluation
It is apparent from the reading of the record that the employee was
not found taking or in possession of the two bags in question.
It is
therefore common cause that the respondent relied on circumstantial
evidence in convincing the arbitrator that the dismissal
of the
applicant was fair. In assessing whether the arbitration award
should be interfered with, this Court is called upon to
determine
whether the arbitrator properly applied the legal test for dealing
with circumstantial evidence in a manner that ensured
that the
employee was not denied a fair hearing as a result thereof.
The principles to apply when dealing with circumstantial evidence
was considered and summarised by this Court in
National Union of
Metalworkers of SA and Another v KIA Motors and Others,
as
follows:
2
'(a) The inference sought to be
drawn must be consistent with all the proved facts. If it is not,
then the inference cannot be drawn.
(b) The true facts should be
such that they exclude every reasonable inference from them save the
one sought to be drawn. If they
do not exclude other reasonable
inferences, then there must be doubt whether the inference sought to
be drawn is correct.'
The court further held that in civil cases the
onus
is
discharged if the inference advanced is the most readily apparent
and acceptable inference from a number of possible inferences.
3
It is thus the only permissible inference and not a mere conjuncture
or speculation that can sustain a case based on circumstantial
evidence.
4
The danger against the use of circumstantial in determining the
guilt of a person has been highlighted in the Kia Motors as follows:
5
'The possibility of error in
direct evidence lies in the fact that the witness maybe mistaken or
lying. All circumstantial evidence
depends ultimately upon facts
which are proved by direct evidence, but its use involves an
additional source of potential error
because the Court may be
mistaken in its reasoning. The inference that it draws maybe
sequitur, it may overlook the possibility
of other inferences which
are equally probable or reasonably possible. It sometimes happens
that the trier of facts at having thought
at a theory to explain the
facts that he may tend to overlook inconsistent circumstances or
assume the existence of facts which
have not been proved and cannot
legitimately be inferred.'
It is only the objective facts from which an inference can be drawn
that can sustain a case based on circumstantial evidence.
In the
English case of
Caswell v Powell Duffryn Associated Collieries
Ltd
, the court said,
6
'There can be no inference
unless there are objective facts from which to infer the other facts
which it is sought to establish.
In some cases the other facts can be
inferred with as much practical certainty as if they had actually
been observed. In other
cases the inference does not go beyond
reasonable probability. But there are no positive proved facts from
which the inference
can be made, the method of inference fails and
what is left is mere speculation or conjuncture.”’
The second respondent in defending the arbitration award contends
that the employee failed during the arbitration hearing to
provide a
satisfactory explanation as to what was she doing in the car.
Mr Mthombeni for the second respondent conceded that the second
respondent in its case both at the disciplinary and arbitration
hearing relied on circumstantial evidence to show that the applicant
was guilty of the offences for which she was charged with.
He argued
that all facts viewed together point to the fact that the applicant
was responsible for removing the bags in question.
He further
contended that the only inference that can be drawn from the facts
is that the applicant removed the bags from the
car.
In my view, the arbitrator failed to appreciate the issue he was
faced with when regard it had to the nature of the evidence
he had
to deal with and thus in arriving at the conclusion as he did,
denied the employee a fair hearing.
It is trite that in cases of this nature the
onus
is on the
third respondent to show, on the balance of probabilities that the
employee was guilty of charges proffered against
him or her. In the
present instance, the third respondent had the duty of showing
firstly that the two bags were in the car.
One witness of the
respondent’s witnesses testified that there were two shopping
bags in the car whilst the other said
that there were two hand bags
in the car. The arbitrator did not accord any weight to this
contradiction. Indeed this may not
be the biggest problem in seeking
to sustain the arbitration award. It however ought not to have been
ignored in the totality
of the facts of the case.
The critical issue and the starting point in this case is whether
the car was locked at the time it was removed and taken to
the
police station. On the probabilities the evidence before the
arbitrator did not establish that the car was locked when it
was
removed from where it was. There is also no evidence that the car
remained locked for the period that it was left at the
back of the
police station where it was parked.
The testimony of Mr Titus is that as he was chasing the first
suspect he was confronted by the second suspect who wanted to know
why he was chasing the first suspect. After what appears to have
been a brief confrontation, Mr Titus required the second suspect
to
open the car. There is no evidence that Mr Titus tested whether
indeed the car was locked or otherwise. There is a possibility
that
the second suspect may have wished to dissuade Mr Titus from opening
the car by saying that the car was locked when in fact
that may not
have been the case. That possibility is however not critical.
The critical aspect of this case is the possibility that Ms Salmon
may have also opened the car and may have left it unlocked,
deliberately or otherwise. She was not called to testify. In my
view, she was a critical witness for a number of reasons. Her
testimony would have assisted the arbitrator to determine as to at
what point and under what circumstances did she come into
possession
of the car keys because the version of the respondent at the
arbitration hearing was that after searching the suspect
soon after
her arrest she (Salmon) said that the only thing she found on her
(the second suspect) was a purse and that the suspect
did not have
keys with her. She was also a critical witness to assist in
determining as to whether from the time she obtained
the keys to the
time she gave them to the employee the car was always locked and
further no other person had access to them before
that period.
On the evidence before the arbitrator the possibility exists that
she may have at some point left the car opened and someone
may have
taken the bags out of the car. The other important piece of evidence
which would have assisted in eliminating all other
possibilities
concerns the issue of safe keeping of the keys once Ms Salmon had
taken possession thereof. The possibility that
the bags could have
been removed by Ms Salmon, for whatever, has not been ruled out.
The other important aspect which the arbitrator failed to
interrogate is the security of the area where the car was parked.
The car was parked at the back of the police station. There is a
pedestrian gate at the back of the police station which provides
access to the barracks. The car could be accessed from that gate.
Mr Titus could not confirm during cross-examination whether he had
checked to see that the pedestrian gate was locked. He could
further
not say whether other people who stay in the barracks who had the
key to the gate could (if the gate was ever locked)
not have opened
the gate and entered from that end.
In light of the above, I am of the view that the respondent has
failed to discharge its duty of showing on the balance of
probabilities
that the employee was responsible for the
disappearance of the hand bags and consequently guilty also of
defeating the ends of
justice.
In light of the above, I according find that the applicant's review
application stands to succeed.
The issue that remains is whether the court should remit the matter
back to the third respondent or determine it. In my view
there is
sufficient material before this Court to determine the matter, and
mainly for the purpose of avoiding any further delay
in the
resolution of the dispute. Having found that the second respondent
failed to prove the fairness of the dismissal in that
it could not
show on the basis of the circumstantial evidence that the applicant
was responsible for the removal of the bags
in question it goes
without saying that her dismissal was substantively unfair. The
consequence of this is that the respondent
has also failed to show
that the applicant was guilty of the other charges of defeating the
ends of justice.
The issue that then remains for determination is the issue of the
remedy. It is trite that the primary remedy in dismissal cases
is
reinstatement unless there are factors that suggest otherwise. I
have not been able to find any factors that suggest the contrary
to
the primary relief in the circumstances of this case. Accordingly, I
see no reason in the circumstances of this case why the
primary
remedy of reinstatement should not apply. As concerning the costs, I
see no reason in the circumstances of this case
why they should not
follow the results.
In the premises, the following order is made:
The arbitration award of the First Respondent is reviewed and set
aside.
The arbitration award is substituted with the following award:
‘
The dismissal of the applicant by the
respondent was substantively unfair.
The respondent is ordered to reinstate the applicant
retrospectively to the position she occupied prior to her
unfair dismissal with full back pay and no loss of benefits
that may have accrued from the date of the dismissal.
The respondent is to pay costs of the applicant.
__________________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: J L Basson Instructed by: Grosskopf Attorney’s
FOR THE RESPONDENTS: Mr Mthombeni Instructed by: State Attorney
1
Act
no 68 of1995.
2
(2007)
28 ILJ 2283 (LC) at para 21 as cited by D T Zerffertt, AP Paizes and
A St Q Skeen
The South African Law of Evidence (
2003) at 94.
.
3
The
leading authority in this respect is
AA Onderlinge
Assuransie-Assosiasie Bpk v De Beer
1982 (2) SA 603
(A) and in
criminal matters it is Rex v Blom
1939 AD 188.
4
See
Victor and Another v Picardi Rebel
(2005) 26 ILJ 2469 (CCMA).
5
See
Kia Motors at paragraph [23]
6
[1939]
3 All ER 722
(HL) at 733.