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[2014] ZALCCT 70
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Brink v Safety And Security and Others (C198/2013) [2014] ZALCCT 70 (9 September 2014)
IN THE LABOUR COURT OF SOUTH AFRICA
(CAPE TOWN)
CASE
NUMBER
:
C198/2013
DATE
:
9 September 2014
In
the matter between:
ROGER
CRAIG
BRINK
..........................................................................................................
Applicant
And
SAFETY AND SECURITY
SECTORAL BARGAINING
COUNCIL
.......................................................................
1
st
Respondent
GERALDINE
DUNN
......................................................................................................
2
nd
Respondent
SOUTH AFRICAN POLICE
SERVICES
.....................................................................
3
rd
Respondent
J
U D G M E N T
STEENKAMP,
J
This is
an application to have an arbitration award by a Commissioner of the
Safety and Security Sectoral Bargaining Council, Ms
Geraldine Dunn,
reviewed and set aside. Ms Dunn is cited as the second
respondent. The SSSBC appears to be the first respondent
-- it
appears that the CCMA was initially and mistakenly cited as the first
respondent. The South African Police Service (SAPS),
the employer, is
the third respondent.
Be that
as it may, it is common cause that the application is aimed at the
award of Ms Dunn handed down under the auspices of the
SSSBC.
The award arises out of an incident where the applicant, Mr Roger
Craig Brink, a former constable, broke the window
of a white Corolla
that was parked under the guard of the SAPS, his employer, and
removed an amplifier and an indicator lens.
Brink drove a red
Corolla that was also parked at the SAPS premises. I do not use the
word "allegedly", because those
were the findings that the
Arbitrator came to. If those findings are reasonable and if the
misconduct is proven on a balance
of probability, that is, of course,
disgraceful conduct coming from an officer of the SAPS, who should be
preventing theft rather
than participating in it.
Mr
Brink, who is unrepresented, although he was represented at the
arbitration by an attorney, raises a wide range of review grounds.
Many of those are not strictly speaking grounds for review, but at
the hearing today he confined himself to an allegation that
the
Arbitrator did not consider relevant evidence or considered
irrelevant evidence.
I will
deal briefly with the main points. The first one is that the
missing goods -- the amplifier and the indicator -- were
not listed
in the so-called SAP.13 form or register that should have listed
items inside the vehicle, i.e. the white Corolla.
Firstly,
one would not expect an indicator lens that was at that stage still
properly fitted to the white Corolla should have been
listed.
As the Arbitrator pointed out, it is interesting to note that Mr
Brink's red Corolla was in need of exactly the same
part, and it was
lying in his car (the red Corolla), whereas the same part was missing
from the white Corolla.
As far as the
amplifier goes, it is so that it is not properly listed.
However, contrary to what Mr Brink submits, the Arbitrator
did not
disregard that. She deals with it pertinently and comes to the
conclusion that that must have been an oversight,
that the list was
incomplete, but:
"[W]hen
viewing the evidence holistically the probabilities do not shift in
favour of the applicant as he is not a credible
witness."
In
doing so the Arbitrator did exactly what she was meant to do, i.e.
weigh up the probabilities and the credibility of the witnesses
and
the evidence before her and come to a conclusion. That
conclusion is reasonable and is not reviewable.
The second
main point raised by Mr Brink is that Mr Arendse, the owner of the
white Corolla, was somehow prevented from testifying.
He could
not substantiate that claim and could not explain, if that was the
case, why his attorney did not issue a subpoena for
Arendse to
testify.
As it
happens, the Arbitrator properly took into account the evidence
relating to Arendse that was placed before her, that consisted
of
entirely contradictory affidavits. The Arbitrator, not
surprisingly, when confronted with contradictory evidence, could
not
find Arendse's evidence to have been credible.
Mr
Brink also complained that the evidence of Captain Lotz, who
administered the leave and administration of SAPS officers at
Kleinvlei
police station, was contradictory and that that was not
taken into account by the Arbitrator. That is also not
substantiated
by the transcript of the evidence compared with the
arbitration award. The Arbitrator deals with the evidence of
Lotz and
notes that in 2012 she, that is Captain Maria Magdalena
Lotz, administered the leave and administration of the officers at
the
Kleinvlei
Police
Station. According to her records Constable Khati was on sick
leave for an injury on duty from 1 January to 17 February
2010.
That is consistent with the evidence of Khati. The Arbitrator
properly took into account the evidence of both
of those witnesses
and compared it with the evidence of Brink, who was not a credible
witness. The arbitrator found it improbable
that Khati could have
been present when Jafta – Brink’s friend from whom he
allegedly bought the amplifier –
signed his affidavit. That is
not an unreasonable finding.
The
test on review, as Mr Brink acknowledged, is by now well-known, as
set out in
Sidumo v Rustenburg Platinum
Mines Ltd
[2007] 12
ILJ
2076 (SCA).
[1]
It is whether the conclusion reached by the Arbitrator is so
unreasonable that no other Arbitrator could have come to the
same
conclusion. As Cameron JA explained in paragraph 30 and 31 of
the SCA judgment:
"The
question on review is not whether the record reveals relevant
considerations that are capable of classifying the outcome.
That test applies when the Court hears an appeal. Then the
inquiry is whether the record contains material showing that the
decision – notwithstanding any errors of reasoning – was
correct. This is because in an appeal the only determination
is
whether a decision is right or wrong. In a review the question
is not whether the decision is capable of being justified
... but
whether the decision-maker properly exercised the powers entrusted to
him/her."
In the
case before me that is exactly what the Arbitrator did. She
carefully considered all of the evidence before her in
a
comprehensive arbitration award spanning 16 pages and, having
summarised that evidence, applied her mind to which of the witnesses
were more credible and which version was more probable. It is
on that basis that she found that the employee, Mr Brink, did
commit
the misconduct complained of, albeit on circumstantial evidence. She
came to the conclusion that the chain of circumstances
presented to
her in evidence was sufficient to draw the inference that Brink was
the only one to whom the evidence pointed.
The
process that an arbitrator needs to follow has been summarised by the
LAC in
Goldfields Mining South Africa
(Pty) Ltd v
Kloof
Goldmine
[2]
,
where the Court asked the following five questions:
"1. In terms of his/her duty
to deal with the matter with the minimum of legal formalities, did
the process that the Arbitrator
employed give the parties full
opportunity to have their say in respect of the dispute?
2.
Did
the Arbitrator identify the dispute she was required to arbitrate
(this may in certain cases only become clear after both parties
had
given evidence)?
3.
Did
the Arbitrator understand the nature of the dispute he/she was
required to arbitrate?
4.
Did
he/she deal with this with substantial merits of the dispute?
5.
Is
the Arbitrator's decision one that another decision-maker could
reasonably have arrived at based on the evidence?"
In the
case before me all of those questions must be answered in the
affirmative. The applicant has simply made out no case
for
review.
That
brings me to the question of costs. I take into account that Mr
Brink is unrepresented. I do not know whether his
attorney who
advised him at arbitration advised him on the merits of this
application. If he had, he would have advised him that
he had no
prospects of success. However, as I say, I do not know whether
that is the case.
Nevertheless,
Mr Brink carried on regardless without properly considering whether
he had prospects of success in this case and that
necessitated the
respondents, especially the SAPS, to incur unnecessary legal costs;
this against the background where an officer
of the SAPS has
committed disgraceful misconduct. In those circumstances, in
law and fairness, there is no reason why the
applicant should not be
held liable for the costs of the SAPS.
The application is
DISMISSED WITH COSTS
.
STEENKAMP, J
APPEARANCES
APPLICANT:
In person
THIRD
RESPONDENT: Ms A de Wet
Instructed
by: The state attorney.
[1]
The
dictum
quoted here has not been overturned by the
decision in
Sidumo v Rustenburg Platinum Mines Ltd
[2007] 12
BLLR 1097
(CC).
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).