About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 190
|
|
Mampa v South African Police Service and Others (JR1498/05) [2014] ZALCJHB 190 (28 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO JR1498/05
In
the matter between:
T
E MAMPA
Applicant
and
SOUTH
AFRICAN POLICE
SERVICE
First
respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Second
Respondent
MRS
N
MBDILENI
Third
respondent
Heard:
17 January 2014
Delivered:
28 May 2014
Summary:
Review of arbitration award – dismissal – Sergeant in the
SAPS dismissed for failing
to provide a satisfactory explanation for
a hijacked vehicle being found in his garage. Commissioner
considered principle
issue before her and came to a conclusion which
a reasonable decision-maker could reach.
JUDGMENT
CHAVOOS AJ
Introduction
[1] This is an
application to review and set aside the arbitration award of the
third respondent dated 25 May 2005.
[2] There were
significant delays associated by both the Applicant and the Third
respondent with the filing of the record and the
answering affidavit
respectively. At the commencement of argument, both parties agreed to
dispense with any objections and arguments
associated with the
respective delays in filing the record and the answering affidavit
and counsel for the respective parties confined
their arguments to
the merits of the review application.
Background
[3] The Applicant was
employed by the First respondent as a Sergeant and dismissed on 14
February 2001 having been found guilty
in respect of two of four
complaints against him.
[4] The two complaints in
respect of which he was found guilty were the following:
‘
Charge
number 3: You are hereby charged with misconduct, in that you
allegedly contravened Regulation 18/3, in that at or near Edenvale,
and or about 18 August 1999, you performed an act, or failed to
perform an act, which constitutes an offence, by being in possession
of stolen property, namely a white Volkswagen Caravelle 2.5l, with
registration number HGL 171GP, without being able to give
a
satisfactory explanation.
Charge number 4: You are
hereby charged with misconduct, in that you allegedly contravened
Regulation 18/3, in that or near Edenvale,
and on or about 18 August
1999, you performed an act, or failed to perform an act, which
constitutes an offence, by using a State
vehicle, a white Volkswagen
Golf, with registration number JDF 384GP without the owner’s
consent and/or the necessary
authority’.
[5] The Applicant then
appealed the findings handed down at the disciplinary hearing. The
Appeal Chairman found him not guilty in
respect of Charge 4 but
upheld the verdict of guilt in respect of Charge 3 and the sanction
of dismissal was confirmed.
[6] The Applicant
challenged his dismissal at the Safety and Security Sectoral
Bargaining Council (“Bargaining Council”).
The
arbitration was concluded on 10 May 2005.
[7] The parties signed a
pre-arbitration minute and the following facts were common cause:
7.1
The owner of a white Volkswagen Caravelle
2.5l with registration number [……] was hijacked on 18
August 1999 in Edenvale
at about 18:25 and the stolen vehicle was
subsequently found parked in the Applicant’s garage on the same
day.
7.2
The hijacked vehicle was prior to the
robbery, followed by a white golf similar to the SAPS vehicle in the
Applicant’s possession
but the owner of the hijacked vehicle
could not identify the occupants.
7.3
The keys of the hijacked vehicle were found
in the vicinity of the Applicant’s house.
7.4
The SAPS white Golf vehicle [……….]
was parked near the Applicant’s house when the hijacked vehicle
was
discovered.
[8] The Commissioner
summarised the crux of the matter as follows:
8.1
Could the Applicant give a plausible
explanation of why a stolen or robbed vehicle was found parked in the
garage of his house?
8.2
Did the Applicant have the authorisation to
use the State vehicle on 18 August 1999?
The
arbitration award
[9]
The Commissioner reasoned
that the Applicant was required to provide a satisfactory explanation
as to why a stolen vehicle was found
in his garage after it was
established that he was the owner of the house where the hijacked
vehicle was found and he was positively
identified at an
identification parade as the person fleeing the scene when Mr Beuter
of a tracking company had tracked the hijacked
vehicle to his house.
[10]
In arriving at the
conclusion that the Applicant was guilty of misconduct and that his
dismissal was substantively fair, the Commissioner
rejected the
Applicant’s version that the hijacked vehicle was stolen by his
“homeboy” who was renting a room
from him at the time of
the incident and parked in his garage without his knowledge. She also
had difficulty accepting the version
of his alibi, a certain Mr Pasha
(“Pasha”) who corroborated the Applicant’s evidence
that he was not at home
when the hijacked vehicle was parked in his
garage as a consequence of Pasha having requested the Applicant to
drive his 16 seater
kombi to pick up his passengers after they
knocked off work in Edenvale and to transport them home as Pasha was
involved in a stokvel
meeting at his home and was accordingly, unable
to collect his passengers and transport them home.
[11]
The Commissioner found
Pasha’s evidence to be suspect and contradictory and accepted
Beuter’s evidence as being more
credible.
[12]
Beuter testified that the
Applicant had approached them when they were close to the Applicant’s
house whilst following the
signal and tracing the hijacked vehicle.
The Applicant had asked them what they were looking for. He also
testified that the Applicant
had later fled the scene when Beuter had
lifted himself over the wall and saw the Applicant bending over at
the garage door when
he tracked the hijacked vehicle to his garage.
Beuter positively identified the Applicant at the identification
parade which identification
the Applicant challenged at the
arbitration on the basis that it was flawed.
[13]
The Commissioner also found
it inconceivable that the Applicant’s wife Ms Mampa could not
have heard anyone parking the hijacked
vehicle in the garage if she
was at home at the time, alternatively, did not see the hijacked
vehicle in the garage if it was parked
in the garage before she came
home and found it strange that the Applicant led no testimony on the
issue of his wife’s knowledge
of the vehicle which was found
parked in his garage.
[14]
The Commissioner also found
it improbable that the Applicant’s “homeboy” could
risk parking a stolen hijacked
vehicle in his garage without his
consent (knowing that he was a police officer).
[15] The Applicant seeks
to review and set aside the arbitration award of the third respondent
on the basis that she had failed
to apply her mind to several issues
as pleaded in paragraph 9 of the founding affidavit in addition to
pleading that the award
is grossly irregular and irrational.
[16] He points out to
several contradictions in the testimony of Beuter and Brodie, the two
individuals who tracked the hijacked
vehicle to the Applicant’s
home and alleges that the Commissioner had misdirected herself by
accepting their testimony.
[17] The Applicant also
alleges a gross irregularity in the proceedings as consequence of the
Third Respondent having found the
Applicant guilty of Charge 4 which
was set aside on Appeal.
Evaluation
[18] The Applicant is
alleged to have been picking up passengers as a favour for his friend
and
alibi
Pasha in the same area and around the same time when
the kombi was hijacked.
[19] It is common cause
that prior to the vehicle being hijacked, it was followed by a white
Golf similar to that of the SAPS vehicle
in the Applicant’s
possession.
[20] Beuter testified
that he had got a glimpse of the Applicant in the white Golf at the
time that they were in the Applicant’s
street searching for the
hijacked vehicle which contradicts the Applicant’s testimony
that he was busy transporting passengers
for his neighbour Pasha, who
was busy with a stokvel meeting on a Tuesday afternoon.
[21] Brodie and Beuter
testified that a black gentleman had subsequently approached them
after he had come from the direction of
the white Golf and asked them
what they were looking for.
[22] According to Brodie,
he advised the Applicant that they were looking for a hijacked
vehicle and the Applicant thereafter left
and proceeded towards one
of the two houses where they had narrowed down their search for the
hijacked vehicle.
[23] According to Beuter,
he pulled himself up the wall of the house next door and noticed a
black male bending over next to the
roller door and called back at
him. He saw that it was the same gentleman that had talked to them
earlier (being a reference to
the Applicant). The Applicant then fled
the scene.
[24] Beuter identified
the Applicant at the identity parade. At the arbitration, the
Applicant attacked the procedural aspect of
the identification parade
claiming it was flawed
[25] It was not disputed
that the keys of the hijacked vehicle were found in the garden of the
Applicant’s next door neighbour.
[26] The Commissioner in
arriving at her decision that the dismissal of the Applicant was
fair, preferred the version of Beuter
to that of the Applicant and
Pasha.
[27] She found the
evidence of Pasha to be suspect due to contradictions in it and found
Beuter to be a credible witness. She did
not deal with each and every
factor or contradiction individually and independently but elected to
deal with the substantial issue
that she was required to determine,
namely whether the Applicant had given a satisfactory explanation as
to why a hijacked vehicle
was found in his garage. I have considered
the testimony of Pasha and cannot criticise the Commissioner for her
findings in respect
of Pasha’s credibility and testimony. I
also cannot fault her for preferring the version of Beuter to that of
Pasha despite
some of the contradictions in Beuter’s testimony.
I point out that there were equally several contradictions in Pasha’s
testimony and he does not come across as a credible witness if one
has regard to the record.
[28] The Applicant has
approached this matter as if it were criminal trial pointing out each
and every single factor that may have
amounted to a contradiction in
the testimony of the first respondent’s witnesses including
inter alia, whether the Applicant
had worn a white shirt, t-shirt, or
golf shirt, whether the street lights were on or off, whether or not
the garage door behind
which the hijacked vehicle was parked was open
or closed, the direction from which the black gentleman had
approached them, when
was Beuter in the vehicle with Brodie when
certain questions were asked by the black gentleman who approached
them, and in which
direction was the white Golf vehicle parked and
the like.
[29] The Commissioner in
her award makes reference to the record and the evidence of all the
various witnesses and indicated that
she did not re write the
evidence but merely referred to it where applicable. She is allowed
to do this in terms of s 138
of the LRA which requires her to deal
with the merits of the dispute between the parties with the minimum
of legal formalities
in an expeditious and fair manner.
[30] The fact that she
has not approached the matter as if this were a criminal trial to be
determined beyond reasonable doubt (which
seems to be the manner in
which the Applicant approached this matter), is in no way indicative
of the fact that she had not applied
her mind to the crux of this
matter.
[31] I accept that she
may have committed certain irregularities (one of which was to find
the Applicant guilty of being in possession
of a State vehicle
without any authority in circumstances where this charge was
dismissed on appeal and the other being a finding
that the evidence
of theft or possession of the stolen vehicle being circumstantial),
the real issue is whether such irregularities
or gross irregularities
renders the award susceptible to be reviewed and set aside.
[32] It is trite that in
order to succeed on review, the Applicant is required to establish
that based on the material presented
before the Commissioner, her
conclusion was one that a reasonable decision maker could not have
reached. There has been two recent
judgments which now
authoritatively set out the requirements for a successful review for
gross irregularity under s 145 of the
LRA.
The judgements are:
32.1
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[1]
.
The court held that:
‘
in summary, the
position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated in s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to particular facts, are not in and of
themselves sufficient for an award to be set aside, but are only of
any consequence if their
effect is to render the outcome
unreasonable’.
32.2
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2]
:
‘…
what is
required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonableness test established by
Sidumo
. The gross
irregularity is not self-standing... It follows that the argument
that the failure to have regard to material facts
may potentially
result in a wrong decision has no place in review applications.
Failure to have regard to
material facts must actually defeat the constitutional imperative
that the award must be rational and
reasonable – there is no
room for conjecture and guesswork insulated from or standing
independent of the
Sidumo
test.
Where an arbitrator fails
to have regard to the material facts it is likely that he or she will
fail to arrive at a reasonable decision.
Where the arbitrator fails
to follow proper process he or she may produce an unreasonable
outcome.
…
(i)
In terms of his or her duty to deal with the matter with the minimum
of legal formalities, did the process that the arbitrator
employed
give the parties a full opportunity to have their say in respect of
the dispute? (ii) did the arbitrator identify the
dispute he [or she]
was required to arbitrate (this may in certain cases only become
clear after both parties have led their evidence)?
(iii) did the
arbitrator understand the nature of the dispute he or she was
required to arbitrate (iv) did he or she deal with
the substantial
merits of the dispute, and (v) is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?’
[33] I have read the
record and I am satisfied that, based on the evidence presented
before the Commissioner at the arbitration
proceedings, and having
considered her award, she has considered the principle issue before
her namely whether the Applicant has
furnished a satisfactory
explanation as to why a hijacked vehicle was found in his garage and,
after evaluating the facts presented
at the hearing, her decision
that the Applicant had not provided a satisfactory explanation, was
one that could certainly have
been reached by a reasonable
decision-maker. I do not deal with each and every individual factor
pleaded by the Applicant in his
founding affidavit or for that
matter, contained in his heads of argument prepared by his legal
representative, nor do I set out
in detail how the arbitrator treated
and dealt with each of those factors (or failed to do so) in her
award as this is not what
is required of a review court. I find that
there is no basis for the arbitration award to be reviewed and set
aside.
[34] Insofar as the issue
of costs is concerned, s162 of the LRA confers a broader discretion
on this court to make orders for costs
according to the requirements
of law and fairness. I am mindful of the fact that the Applicant is
an individual litigant who has
incurred substantial legal costs
associated with the defence of his disciplinary hearing, criminal
trial and the challenge to his
dismissal both at the Bargaining
Council and the Labour Court. I am also mindful of the fact that
equity applies to both the employer
and the employee. I believe that
the dismissal of the Applicant’s review application is
sufficient enough in the circumstances.
[35] In the premise, I
make the following Order:
The
application for review is dismissed with no order as to costs.
__________________________
Chavoos
AJ
Acting
Judge of the Labour Court of South Africa.
APPEARANCES:
For the
Applicant:
Advocate J S Mphahlavi,
Instructed
by:
Denga Incorporated Attorneys
For the third
respondent:
Advocate H W
Sibuya,
Instructed
by:
the State Attorney
[1]
(2013) 34
ILJ
2795 (SCA) at para 25.
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); see (2014) 35
ILJ
943 (LAC) at paras 15: and 20 to 21.