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[2013] ZALCJHB 117
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Mtembu v Safety and Security Sectoral Bargaining Council and Others (JR2870/10) [2013] ZALCJHB 117 (11 June 2013)
REPUBLIC OF SOUTH AFRCA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
Case No: JR2870/10
In the matter between:
Z T MTEMBU
................................................................................................
Applicant
and
THE SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL
................................................................
First
Respondent
I A SIRKHOT N O
......................................................................
Second
Respondent
THE MINISTER OF SAFETY AND SECURITY
.............................
Third
Respondent
SOUTH AFRICAN POLICE SERVICE
........................................
Fourth
Respondent
Heard: 11 February 2013
Delivered: 11 June 2013
Summary:
Review application. Law of evidence. Applicant
failing to testify at arbitration. Now seeks to review the outcome of
the arbitration.
Version put to witnesses in cross examination at
arbitration which required Applicant’s evidence to sustain.
Such versions
not to be relied upon in argument to sustain
Applicant’s case and cannot be taken into account by the court.
Failure to give
evidence counted against Applicant in casu. Applicant
entitled not to give evidence, notwithstanding version being put to
witnesses,
if issues not material or in dispute and case not made out
against him.
Procedural Law. Charges formulated so as to make it appear that
several charges formed “elements” of a single charge.
Submitted on behalf of Applicant that if all the “elements”
are not proven, charge is not proven. Charges drafted in
this manner
are not to be regarded in this way. This would constitute a highly
artificial and undesirable approach. No reason not
to make findings
in respect of individual infractions.
JUDGMENT
SNIDER A J
[1] In this matter the Applicant seeks relief to the following
effect:- that an award
1
(“the award”) dated 29 September 2010 issued by the
Second Respondent (“the Commissioner”) under the auspices
of the First Respondent under case number PSS 340 and 390 –
09/10 be reviewed and set aside. The Applicant also seeks costs
of
the application and further or alternative relief to the main relief
sought.
2
[2] In the papers before me, there is a condonation application
brought by the Third and Fourth Respondents in respect of the late
filing of their answering affidavit and there is also a point
in
limine
relating to the late filing of the Applicant’s
supplementary founding affidavit which has been taken by the Third
and Fourth
Respondents. The parties agreed, prior to the hearing of
this matter that neither of these interlocutory matters would be
persisted
with in argument and that only the merits of the
application would be dealt with.
[3] In light of this and in light of me being satisfied that the
matter ought to be determined on its merits, and that a consideration
of those merits outweighs any lateness on the part of the parties in
respect of the filing of the answering affidavit by the Third
and
Fourth Respondent, and the late filing of the Applicants supplement
founding affidavit, I accordingly condone such lateness.
[4] Although the events surrounding this matter could not have taken
much more than forty five minutes to an hour, it is nevertheless
a
factually dense matter. A number of witnesses, some eleven all in
all, gave evidence at the arbitration of the matter.
[5] Very briefly, in summary, the facts of the matter are the
following:–
On 12 April 2008,the Applicant attended at a small-holding situated
at 164 Waagfontein, Rustenberg (“the premises”);
3
the premises which the Applicant attended comprised,
inter alia
,
of a workshop where trucks, which transported ore from certain
mines on a contract basis for a company, known,
inter alia,
as
Banson or the Banson Tiro Group (Pty) Limited (“Banson”)
were serviced and / repaired. The evidence suggests
that there was
more than one corporate entity which used the name “Banson”
in its name, but it was clear that the
entities were closely
connected and operated, for the purposes of this matter,
essentially as one entity;
the Applicant, alternatively the Applicant’s wife, was the
owner of a TATA truck with registration number WSD 419 GP;
4
the Applicant’s wife was the sole member of a close
corporation – Bayapha Business Services CC;
5
it appears, although there are discrepancies in the evidence in
this regard, that the Applicant, who attended at the premises
with
certain other individuals, a mechanic, Alexior Muriungweni, his
brother and the Applicant’s son
6
went towards the truck and whilst at the truck were approached by
one Tanya Rossouw (“Rossouw”) who worked for
the
workshop business and was returning to the premises from a shopping
trip;
the Applicant wanted to remove his truck alternatively have work
done on it by his own mechanic;
Rossouw informed the Applicant that there were outstanding payments
in respect of the truck and that it could not be released
to the
Applicant until such time as the payment had been made. The
payments were in respect of work which had been done on
the truck
at the premises by the workshop;
according to the evidence of Rossouw the Applicant became agitated
at not being entitled to remove his truck and attempted
to get past
her and, when doing so, pushed her out of the way;
as a result of this, the exchange between the Applicant and Rossouw
became quite heated and a security guard, one Gert Tokkie
Lekhalakala (“Lekhalakala”) stood between the two and
requested the Applicant to leave the premises;
at some time after this Rossouw released her dogs in an endeavour,
I surmise, to ensure the Applicant’s departure and
that he
would not return. This particular factual aspect, as will appear
from what is set out below is not of any particular
significance in
the scheme of the matter;
the Applicant, who was carrying his service issue pistol with him
then threatened to shoot the dogs if Rossouw did not call
them
back;
Rossouw duly called the dogs back; and
some relatively short time after that one Johannes Cornelius
Engelbrecht, (“Engelbrecht”) having been phoned by
Rossouw arrived at the premises and become involved in an
altercation with Applicant.
[6] The events which transpired after Engelbrecht and the Applicant
become involved in the fracas which is repeatedly described
in the
transcript as “wrestling”, apparently the Applicant’s
fire arm being the central subject of the wrestling,
are similarly of
no particular relevance to the determination of this matter as will
become apparent from what is set out below.
[7] At the time of his dismissal the Applicant was a Captain in the
employ of the Fourth Respondent (“the SAPS”) with
20
years of service.
[8] The charges made against the Applicant were the following –
first charge:- in terms of
Section 40
of the
South African Police
Service Act 1995
read with the South African Police Service
Discipline Regulations 2006, you are hereby charged with misconduct
in that you
allegedly contravened Regulation 20(e) of the said
regulations at or near small-holding 164 Waagfontein, Rustenberg,
during
Saturday 12 April 2008 at 15:20, in that you endangered the
lives of others by disregarding safety rules or regulations in that
you pointed a firearm at Tanya Rossouw, threatening to kill her;
second charge:- in terms of
Section 40
of the
South African Police
Service Act 1995
read with the South African Police Service
Discipline Regulations 2006, you are hereby charged with misconduct
in that you
allegedly contravened Regulation 20(q) of the said
relations at or near small holding 164 Waagfontein, Rustenberg,
during Saturday
12 April 2008 at 15:20 in that you contravened any
prescribed code of conduct for the service or the public service
which may
be applicable to him. In that you did not uphold the
constitution and the law, you did not act with integrity and
utilise available
resources responsibly, uphold and prevent the
fundamental rights, act in a manner that is impartial, honest,
respectful, transparent
and accountable, and exercise the powers
conferred upon you in a reasonable and controlled manner by
pointing a firearm at
and threatening to kill Tanya Rossouw and by
assaulting Tanya Rossouw and Johannes Cornelius Engelbrecht;
third charge: in terms of
Section 40
of the
South African Police
Service Act 1995
read with the South African Police Service
Discipline Regulations 2006, you are hereby charged with misconduct
in that you
allegedly contravened Regulation 20(z) of the said
regulations at or near small holding 164 Waagfontein, Rustenberg,
during
Saturday 12 April 2008 at 15:20 in that you committed a
common law offence by pointing a firearm at Tanya Rossouw,
assaulting
and threatening to kill her and assaulting Johannes
Cornelius Engelbrecht; and
fourth charge:- in terms of
Section 40
of the
South African Police
Service Act 1995
read with the South African Police Service
Discipline Regulations 2006, you are hereby charged with misconduct
in that you
allegedly contravened Regulation 20(m) of the said
relations at or near small holding 164 Waagfontein, Rustenberg,
during Saturday
12 April 2008 in that you without written approval
of the employer performed work for compensation in a private
capacity for
another person or organisation either during or
outside working hours in that you performed work for Banson, Tiro
Group (Pty)
Limited for an undisclosed period under a contractual
agreement.
[9] The Applicant was subjected to an internal disciplinary
proceeding which included an appeal. Pursuant to this process he was
dismissed from the services of the SAPS and duly referred the matter
to the First Respondent for conciliation and then arbitration.
The
arbitration was heard by the Commissioner and, as set out above,
eleven witnesses were called, nine on behalf of the SAPS and
two on
behalf of the Applicant.
[10] The Applicant himself elected not to give evidence. I will deal
with this election and its consequences more fully below.
[11] At the arbitration, the Applicant challenged only the
substantive aspects of his dismissal, not the procedure which was
followed
by the SAPS in effecting the dismissal.
[12] In respect of the first charge, there was no evidence at the
arbitration that the Applicant pointed a firearm at Rossouw,
threatening to kill her. This was not the evidence of Rossouw. The
Commissioner correctly made a finding in accordance with this
evidence and accordingly could not have taken this aspect into
account in coming to his final decision that the dismissal was
substantively fair.
7
[13] However, in relation to the allegations contained in charges two
and three concerning an assault on Rossouw, there was evidence
in
this regard given by Rossouw, which was clearly taken into account by
the Commissioner in reaching his decision. The evidence
given by
Rossouw in this regard certainly demonstrates that an assault took
place. Extracts of the evidence of Rossouw in this
regard are worth
considering:–
‘
I was
standing on the side of the truck he was standing here and he wanted
to come by and I was in the way so he pushed me out of
the way.
8
[14] In argument by the Applicant’s representatives and in the
heads of argument submitted on behalf of the Applicant, emphasis
was
placed on Rossouw’s attitude towards the assault and
particularly that she did not regard it as being particularly
serious.
Whether this is the case is not the relevant concern. It is
not the subjective perception of Rossouw that is in question, but
rather
whether or not, as an off duty policeman, the Applicant was
within his rights to conduct himself as he did, or more cogently, did
he perpetrate and assault as set out in the charges which were
brought against him.
[15] As set out above, the Applicant failed to testify. Rossouw’s
evidence, at the very least, and notwithstanding subsequent
evidence,
and here I refer to the evidence of Lekhalakala, which was not put to
Rossouw in cross-examination, and which contradicted
her version,
established a case on the basis of which the commissioner could
reasonably come to the conclusion that an assault,
however grievous
or benign it may have been, had taken place.
[17] The Applicant sought to discredit the SAPS’ case purely by
cross-examining its witnesses and himself leading the evidence
of two
witnesses.
[18] Bearing in mind that the burden of proof on the SAPS was on a
balance of probabilities and that in terms of the decision in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
9
the test to be applied by me is whether the decision reached by the
Commissioner is one that a reasonable commissioner could not
have
reached, the Applicant created certain difficulties for himself by
electing to take the view that the SAPS had not proved
its case. I do
not share the Applicant’s view that the SAPS did not prove its
case on a balance of probabilities to sustain
the Applicant’s
dismissal.
[19] I have already alluded to one of these difficulties in relation
to the assault on Rossouw in respect of which I am of the
view that
the Commissioner’s decisions falls squarely on the right side
of the test set out in
Sidumo (supra).
[20] The Applicant relied solely on the evidence of the two witnesses
called by him and an assessment that the SAPS had failed
to proof its
case in respect of any of the charges on a balance of probabilities.
Unfortunately for the Applicant this strategy
was not successful. A
case was made out that he ought himself to have answered by giving
evidence.
[21] The Applicant complains as to various statements made by the
Commissioner in his judgement, specifically the following:–
‘
The
incident that triggered the assault was his possession of a firearm’
‘
The
Applicant had no business being on private property wrestling with a
civilian on the ground carrying a State issued firearm
whilst being
off duty.
I have to conclude that in the
absence of testimony from the Applicant that he had tried to conceal
his identity for as long as
possible as he was aware that he was
pursuing his own private business interest carrying a State owned
firearm.
The conduct of the Applicant by
carrying a State owned firearm onto private premises to pursue his
private business interests and
by so doing endangering the lives of
other civilians for financial gain is a misuse of his State owned
firearm entrusted to him
which lead to the incident of 12 April
2008.’
[22] These statements are to be viewed in context and it is clear
that they did not constitute the
ratio decidendi
of the
Commissioner’s decision. The first statement referred to above
was made in the context of the altercation or “wrestling”
that took place between Engelbrecht and the Applicant.
[23] It cannot be seriously contented that the Applicant’s
firearm, whether State owned or not, was not a significant factor
in
causing the altercation, initially between Engelbrecht and the
Applicant, which then involved other people ultimately arresting
the
Applicant and the Applicant coming to considerable harm in the
process.
[24] The comment concerning a State issued firearm must be viewed in
light of the evidence of De Beer that the Applicant told him
that the
firearm belonged to the Applicant’s wife. It is simply a
tangential factual matrix which supports the conclusions
which the
Commissioner comes to in relation to the Applicant doing work outside
the scope of his employment with the SAPS, without
written
permission. I will refer to this conduct below as “moonlighting”.
[25] The issue of the Applicant’s identity, that is to say that
he was a policeman, and his failure to reveal this is an
entirely
legitimate conclusion for the Commissioner to arrive at under the
circumstances. It is clear from the evidence as a whole
that, in
appropriate circumstances, a policeman may be given written
permission to work outside the scope of his duties for the
SAPS. In
these circumstances there would be no need for him to conceal the
fact that he is a policeman. People in society have
every reason to
expect policeman, whether they are acting in their capacity as such
or in the private business world to conduct
themselves in a proper
manner, such as anyone else may. The mere fact that the individual is
a policeman does not in any sense
lead automatically to the
conclusion that he would use his authority and powers as a policeman,
in a civilian commercial context,
to advantage himself.
[27] I am in agreement with the Commissioner that the act of
concealing his status as a policeman did the Applicant no credit.
[28] Notwithstanding the above this is, as set out above, clearly not
the
ratio decidendi
of the Commissioner’s decision and
only goes to how the Applicant’s failure to identify himself
contributed to causing
the fracas whereas had he conducted himself in
a proper manner, it is unlikely that these events would have
transpired. The implied
question was legitimately asked by the
Commissioner as to why the Applicant did not disclose his identity.
[29] This is not to say that I am making a finding that the Applicant
had a duty to disclose that he was a policeman, but simply
to
consider the impact that this disclosure would have had, had it been
made at an earlier point in time than it ultimately was.
[30] The fact of the matter is that regardless of whether the
Applicant identified himself as a policeman, had he not assaulted
Rossouw, it is unlikely that any of the subsequent events would have
taken place.
[31] Undue emphasis has been placed on the issue of the carrying of
the firearm. This is not the gravamen of these statements,
which the
Applicant seeks to criticize.
[32] The relevant comment made by the Commissioner was:-
‘
...
started
with a phone call that become several phone calls that the Applicant
had pointed a firearm at Rossouw and had assaulted
her’
10
This is a reflection of evidence that was given at the arbitration.
Again this is not a conclusion in respect of one of the charges.
The
Commissioner was well aware of the fact that no attempt was made to
shoot or point a firearm at Rossouw. He was referring merely
to the
phone calls. As set out above, he made a finding in this regard in
favour of the Applicant.
[32] If reference is had to the charges, the “elements”
thereof cannot be compared to the “elements” which
make
up a criminal offence. In this regard, in his heads of argument,
Counsel for the Third and Fourth Respondents refers to “assault”
as the unlawful and intentional (a) applying of force to a person of
another directly or indirectly; or (b) threatening another
with
personal violence in circumstances which leads the threatened person
to believe that the other intends and has the power to
carry out the
threat. These are the traditional “elements” of a crime.
In regard to the charges which were preferred
against the Applicant
it could never have been in the contemplation of the SAPS that, if
regard is had, for example, to charge
number two that if the pointing
of a firearm was proved, but a threat to kill and assault were not
proved or, alternatively, that
an assault was proved but not a threat
or pointing a firearm this would mean that the charge had not been
proved. This would, with
respect, be an absurdity. One simply cannot
break down the elements of these charges in the way one would a
criminal charge. If
the Applicant is found guilty of what is properly
regarded as an offence, such as assault, this finding stands on its
own. This
is in effect what happened in this matter in regard to the
assault on Rossouw.
[33] Contrary to the submissions made on behalf of the Applicant, the
assault on Engelbrecht was in fact an issue at the arbitration.
The
mere fact that the Applicant was found not guilty of this charge at
the disciplinary hearing is not relevant:
11
‘
During
argument, counsel for both parties spent a great deal of time
debating whether or not it was proper at the arbitration hearing
for
the arbitrator in determining the fairness of dismissal to have had
regard to the evidence relating to the alternative charge
on which
Myers was acquitted at the disciplinary enquiry. The debate on this
issue was in my view unnecessary as the law regarding
the form of the
proceedings before the arbitrator is clear. The legal position is
that the proceedings before the commissioner
take the form of a
hearing de novo. The findings of an earlier disciplinary enquiry are
irrelevant and not binding on the commissioner
who is called to
arbitrate the dispute.’
12
[34] Notwithstanding the above there was no proper evidence on which
a finding could be based that the Applicant was guilty of
assaulting
Engelbrecht. This issue is accordingly moot. In any event the
Commissioner did not make a finding in this regard.
[35] The commissioner only made findings in relation to two charges:-
the assault on Rossouw;
13
and
the moonlighting charge.
14
[36] It is correct that the commissioner does not neatly identify the
charges and deal with each charge and each part of each charge
in a
sequential and ordered manner. This however, does not constitute a
gross irregularity for the purposes of testing the decision
against
the requirements for reviewing it. I must still have regard to the
test for reasonableness as set out in
Sidumo (supra
) and
determine whether the two findings, as set out above, in respect of
the assault and the moonlighting are findings that a reasonable
commissioner could not have come to. I do not regard them as such. I
must also emphasise that there cannot be any question that
the
Applicant was aware of and understood the charges against him.
[37] It is also significant, when regard is had to the charges and
the evidence, that it is the two charges where the evidence
is most
cogent and reliable against the Applicant, in respect of which the
commissioner makes finding against him. The evidence
in respect of
the assault on Rossouw was simply not challenged. Although a version
was put to Rossouw that the Applicant would
say that he never pushed
her, notwithstanding having put such a version, the Applicant failed
to testify.
[38] It is a well established rule in our law that a party put so
much of his own case or defence as concerns that witness, to
inform
him, if he has not been given notice thereof, that other witnesses
will contradict him, as to give him fair warning and
an opportunity
of explaining the contradiction and defending his own character.
15
[39] On several occasions versions were put to witnesses which
versions were not subsequently placed in evidence by the Applicant,
as he failed to give evidence at all. As much as it is a well
established rule in our law that a version should be put in
cross-examination,
as set out in the authorities cited above, there
must similarly be consequences where a witness is put on notice that
their evidence
will be contradicted and, with no reason whatsoever
being advanced, the relevant witness who was to contradict that
evidence, in
this case the Applicant, does not himself give evidence.
However it must be that the Applicant’s reason for not giving
evidence
after having put those versions, was that ultimately the
Applicant, at the end of the SAPS case, took the decision, for better
or for worse, that the SAPS had not made out a case. Obviously he
could not rely on those versions put to witnesses, in respect
of
which no evidence was subsequently given, to sustain his argument
that the SAPS did not make out a case.
[40] The Applicant’s failure to give evidence was not
satisfactory on two bases, firstly that he did not give the evidence
required to support particular propositions put to witnesses and,
secondly, that he did not give evidence when a case had been
made out
against him in respect of the assault on Rossouw and the moonlighting
charge. As examples of versions being put and not
sustained in
evidence, which were relevant for the purposes of underlying or
supporting allegations that the SAPS had not made
out a case I refer
to firstly a proposition put to Musthan as follows:-
‘
What
do you say to that, Zama (the Applicant) says despite those documents
I am not the owner of that cheque’ (should be truck)
,
16
And, secondly when the
Applicant’s representative put it to Rossouw, which is a
critical aspect of this whole matter concerning
the assault on her as
follows:-
‘
and I
forgot to put this to you, that is that Zama denies and pushed
[inaudible] and you are not going to conceive that he didn’t
push you?
Rossouw:–No he, no he did
push me.’
17
[41] I understand that it was the Applicant’s election not to
give evidence if the SAPS did not make out a case and that
in this
context it may be excusable that versions were put and no evidence
supporting those versions was led. However, the difficulty
remains
that those propositions have no probative value and to the extent
that the Applicant was incorrect in his assessment of
whether the
SAPS made out a case, which I believe he was, there was no evidence
from the Applicant on which the Commissioner could
rely to make any
contrary finding on the two particular issues referred to above.
[42] The evidence in respect of the alleged assault on Engelbrecht
was fraught with difficulty and, as correctly pointed out by
the
Applicant’s counsel Engelbrecht conceded that he had initiated
the conflict with the Applicant. The commissioner in any
event made
no finding in this regard.
[43] In respect of themoonlighting charge, the evidence was thorough
and the evidence given by Ahmed Musthan (“Musthan”),
a
Lieutenant Colonel in the SAPS
18
was comprehensive, thorough and supported by documentary evidence.
This evidence was supplemented by the evidence of Basil Christiaan
van der Westhuizen (“Van der Westhuizen”)
19
who pertinently gave evidence that one of the documents referred to
by Musthan which indicated payment to the Applicant, was in
fact a
proof of payment document of Banson.
[44] As far as the commissioner’s findings in relation to
Lekhalakala as a witness are concerned, it is not the function
of
this court to lightly overturn a credibility finding made by the
commissioner. The commissioner was in a unique position to
observe
the demeanour of Lekhalakala and his assessment in this regard should
stand in the absence of some compelling consideration
or
considerations to the contrary.
[45] A further difficulty that I have in reviewing the impeachment of
Lekhalakala as a witness is that his version was never put
to Rossouw
in cross-examination.
[46] While I accept, for these purposes, that Lekhalakala could only
be called by the Applicant at a later stage and that the Applicant
may only have been able to interview him for the purposes of giving
evidence at a late stage, under these circumstances, bearing
in mind
that the Applicant was legally represented, clearly by a competent
practitioner, application could have been made to recall
Rossouw for
the purposes of putting Lekhalakala’s version to her.
[47] It is a critical aspect in the matrix of evidence in this matter
as Lekhalakala’s evidence goes directly to one of the
key
findings made by the Commissioner, that is to say whether or not
Rossouw was assaulted. I’m of the view that in the
circumstances the application to recall Rossouw would have been
proper and probably granted by the Commissioner. It is clear that
the
commissioner considered Lekhalakala evidence as well as his presence
or absence at the time, this being a contentious issue
in the
evidence. The Commissioner devotes some time to this analysis.
20
It is interesting that in his original statement Lekhalakala
corroborated the assault on Rossouw.
21
This is one of the Commissioner’s concerns, that Lekhalakala’s
evidence contradicted his statement.
[48] Other reasons given by the Commissioner for rejecting the
evidence of Lekhalakala were:-
he contradicted other witnesses called by the Applicant;
he contradicted the evidence of De Beer who the Commissioner found
was a credible witness;
his version was not put to witnesses who denied seeing him on the
scene when the incident took place;
22
and
it would be strange for him to present throughout the incident and
do nothing to stop it. It was his duty.
23
[49] I cannot say that the Commissioner unreasonably rejected the
evidence of Lekhalakala. In his heads of argument counsel for
the
Third and Fourth Respondents referred the court to the decision in
Moodley v Illovo Gledhow and Others
24
where the court observed –
‘
[21]
sitting as I do as a review Judge, I fail to understand, in this
case, how I could decide to set aside an award given by an
arbitrator
who sat at the hearing, observed the witnesses, their demeanour and
the manner in which they came across. She was steeped
in the
atmosphere of the proceedings before her. I cannot see that I can
interfere merely on an assessment that she misdirected
herself by
reason of the fact that she considered whether the witnesses were
credable before determining what the probabilities
were in light of
their testimonies.’
[50] The fact that neither Lekhalakala nor Rossouw read their witness
statement and that only Lekhalakala was criticised for this
must be
had regard to in light of the commissioners assessment of the
evidence as a whole as well as Rossouw stating pertinently
that she
believed that what she was saying was in fact being written down by
the police officer taking her statement in an accurate
manner.
[51] In relation to charge four, the “moonlighting”
charge, I am of the view that there was a strong case put up by
the
SAPS through the evidence of Musthan and van der Westhuizen together
with the relevant documentation to which they referred
in their
evidence.
[52] As examples of this I refer to the evidence of Musthan where he
identifies the relevant truck and the fact that it is owned
by the
Applicant.
25
Musthan further identifies documents which clearly indicate the
payments which were made for example banking information,
26
which it subsequently transpired in the evidence of Van der
Westhuizen was proof of payments to the Applicant indicating that the
Applicant was paid, by Banson, during the period from 8 November 2007
to 4 April 2008 an amount of well in excess of R100 000 (one
hundred
thousand rand). Van der Westhuizen’s evidence made it clear
that the letters and numbers “BT12” referred
to Branson
Truck number 12 and that this code explained what it was that
appeared on the proof of payment.
[53] The link between the Applicant, as the owner of the truck, that
it was in fact the relevant truck concerned, and that payments
were
made into the Applicant’s bank account were clearly established
in evidence.
[54] As set out above Van der Westhuizen gave evidence that indeed
the statement that appears in the record
27
is proof of payment from Banson Trucking to the Applicant in respect
of the truck he owned being BT12. I cannot in any way fault
the
Commissioner for coming to the conclusion that he did in relation to
this charge. The fact that it could not precisely be identified
which
payment was for which work is irrelevant. The nature of the
transactions is clear.
[55] It appears that this is a reasonable deduction to be made given
the evidence before the Commissioner. The Applicant placed
himself at
risk by failing to testify in the light of evidence of this nature.
The SAPS regarded this charge as most serious. In
the record relating
to the findings and other matters concerning the disciplinary enquiry
of the Applicant the chairman states
-
28
‘
the
contraventions by the employee all arose out of his intentional
neglect to comply with National Instruction 7/2000 (a collective
agreement). This constitutes gross insubordination and then the
employee contravenes the law and the constitution by means of assault
…’
[56] There is simply no sense whatsoever in the attempt on the
Applicant’s behalf to construct a defence that the truck was
not really owned by him but by his wife’s close corporation,
when scant evidence to this effect was lead. Similarly in respect
of
the defence that he did not benefit from the work as the contract was
between his wife’s company and the trucking company.
There was
clear evidence of payment into his account and under these
circumstances and given the close domestic relationship between
the
supposed parties to this enterprise, it was incumbent on the
Applicant, the SAPS having clearly made out a case, to rebut it.
The
Applicant’s failure to do so was to his detriment.
[57] Again the test is on a balance of probabilities and the criteria
in terms of which the Commissioner’s decision must
be regarded,
for the purposes of the review, is whether a reasonable commissioner
could not come to these conclusions. In my view
a reasonable
commissioner could most certainly come to the conclusion that the
Applicant was deriving benefit from work which he
was doing outside
of the scope of his employment with the SAPS without having received
a written permission to do such work.
[58] I do not believe that the Applicant was in any way denied a fair
hearing. To the extent that he personally was not heard,
this was an
election which he made.
[59] Reference is made by the Applicant’s legal representative
to the judgment of Ngcobo J in
Sidumo
29
where he deals with the failure of a commissioner to have regard to
material facts and same preventing the aggrieved party having
its
case fully and fairly determined. This, in terms of the
dictum
,
constitutes a gross irregularity in the conduct of the arbitration
and the award falls to be set aside, not because the result
is wrong
but because the commissioner has committed a gross irregularity in
the conduct of the arbitration proceedings.
[60] I am of the view that the Commissioner did have regard to the
relevant material facts and came to a reasonable conclusion
in
respect of both the assault and the moonlighting charge.
[61] It appears that the Applicant wishes to rely on both the test in
Sidumo
, (
supra
) to the extent that the averment is made
that the decision reached by the commissioner is not one that a
reasonable decision maker
could have reached, as well as on a process
or dialectic related review as emerges from the Judgment of Ngcobo J
in
Sidumo
and as has been described and analysed by Advocate
Anton Myburgh SC in an article in the Industrial Law Journal
“Determining
and Reviewing Sanctions after
Sidumo
”
30
and more recently dealt with in other decisions of this Court and by
the Labour Appeal Court in,
inter alia
,
Heroldt v Nedbank
Ltd.
31
where the following dictum appears:–
‘
there
is no requirement that the commissioner must have deprived an
aggrieved party of a fair trial by misconceiving the whole nature
of
enquiry. The threshold for interference is lower than that; it being
sufficient that the commissioner has failed to apply his
mind to
certain of the material facts or issues before him, with such having
potential for prejudice and the possibility that the
result may have
been different. This standard recognises that dialectical and
substantive reasonableness are intrinsically interlinked
and that the
latent process irregularities carry the inherent risk of causing an
unreasonable substantive outcome
.’
[62] Key elements of this
dictum
are that there is the
potential for prejudice and the possibility that the result may have
been different as a result of the manner
in which the commissioner
dealt with the arbitration, particularly in relation to factual
material.
[63] In my view the manner in which the Commissioner dealt with the
matter did not carry potential prejudice for the Applicant
in that
the Commissioner was keenly aware of the evidence that was given,
particularly relevant being the evidence of Rossouw,
Musthan and Van
der Westhuizen. He correctly appreciated and analysed the matrix of
evidence in regard to both the assault and
the moonlighting charge.
[64] Similarly, I do not believe that there is a possibility that the
result may have been different. The Commissioner simply did
not fail
to apply his mind to material facts or issues before him.
[65] Accordingly, I am of the view that the decision was reasonable
in terms of the test in
Sidumo
as set out above as well as in
terms of the minority judgment of Ngcobo in
Sidumo
as has been
expanded upon and applied in,
inter alia, Heroldt v Nedbank
(supra).
[66] In the premises, I make the following order:
The application for review is dismissed;
There is no order as to costs
___________________________
pp.
Snider A J
Acting Judge of the Labour Court of South Africa
Appearances -
For the Applicant: Attorney Martin Hennig
For the Third and Fourth Respondents: Advocate F A Boda
Instructed by: The State Attorney
1
A
copy of the award appears in the Record bundle pages 495 to 507
2
Pages
1 and 2 of the Review Bundle
3
Record
441
4
Record
pages 465 to 466
5
Record
page 446
6
Record
pages 307 to 308, evidence of Alexior Muriungweni
7
Record
page 504 third unnumbered paragraph
8
Record
page 31 line 24 ff
9
(2007)
28 ILJ 2405 (CC)
10
Record
top of page 504
11
National
Commissioner of the SA Police Service v Myers and Others
(2012)
33 ILJ 1417 (LAC) at para [42] per the Judgment of Zondi AJA
12
See
also
County Fair Foods (Pty) Limited v Commission for
Conciliation, Mediation and Arbitration and Others
1999 20 ILJ
1701 (LAC) para 11. See also
Independent Municipal and Allied
Trade Union on behalf of Strydom v Witzenberg Municipality and
Others
(2012) 33 ILJ 1081 (LAC) at para 14
13
Pages
442 and 443 of the record
14
Page
444 of the record.
15
Smal
v Smith
1954 (3) SA 434
(SWA) per the Judgment of Judge Classen
at 438. See also the judgment in
Masilela v Leonard Dingler (Pty)
Ltd
2004 (25) ILJ 544 (LC) at paras 28-29, and the judgment in
the
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2001 SA 1(CC)
at 61 to
[63] and
General Food Industries Ltd v Food and Allied Workers
Union
(2004) 25 ILJ 1260 (LAC)
16
Page
128 of the Record lines 15 to 16
17
Page
49 of the record lines 10 to 13
18
The
evidence of Musthan commences from page 86 of the Record
19
The
evidence of van der Westhuizen commences at page 176 of the record
20
Pages
504 to 505 of the record
21
Record
page 474
22
Engelbrecht
163, van der Westhuizen 189 line 17 and van der Walt page 246 lines
10 – 12
23
Van
der Westhuizen pages 180 to 181
24
[2004]
2 BLLR 150
(LC) at para.21.
25
Record
page 91 lines 15 – 16 and page 465 of the record
26
Record
page 448
27
Page
48
28
Page
438 of the record from the bottom of the page
29
At
para 267
30
(2010)
31 ILJ at p 1
31
(2012)
33 ILJ 1789 (LAC) at para39