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[2015] ZALCJHB 61
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Banda v Safety And Security Sectoral Bargaining Council and Others (JR 2974/09) [2015] ZALCJHB 61 (27 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 2974/09
DATE:
27 FEBRUARY 2015
Not
Reportable
In
the matter between:
BANDA,
PETRUS
.....................................................................................................................
Applicant
And
THE
SAFETY AND SECURITY SECTORAL BARGAINING
COUNCIL
.....................................................................................................................
First
Respondent
PANELIST: JOYCE
TOHLANG
N.O
...................................................................
Second
Respondent
SOUTH AFRICAN
POLICE
SERVICES
................................................................
Third
Respondent
Heard:
10 January 2014
Delivered:
27 February 2015
Summary:
Application for review of award – award falls within range of
reasonable findings that a reasonable decision-maker
could have come
to -Analyses of evidence – arbitrator faced with two
conflicting versions of evidence – analysing evidence
on
probabilities of the versions presented – employee’s
version found to be improbable
JUDGMENT
LANCASTER,
AJ
Introduction
[1]
This matter concerns an application by the Applicant to review and
set aside an arbitration award of the Second Respondent in
her
capacity as a panelist of the Safety and Security Sectoral Bargaining
Council (the First Respondent). This application has
been brought in
terms of Section 145 of the Labour Relations Act
[1]
(“the LRA”).
[2]
The Applicant was dismissed by the Third Respondent on 1 February
1995 after a disciplinary enquiry into various allegations
which can
be summarized as follows:
a.
stealing an amount of R40,000 from one Mr Masiteng;
b.
illegally releasing both Mr Masiteng and a certain Mr Dladla;
c.
accepting an amount of R40,000.00 from arrested suspects;
d.
defeating the ends of justice; and
e.
assault.
[3]
The Applicant disputed his dismissal by way of a referral of unfair
dismissal to the Safety and Security Sectoral Bargaining
Council. The
matter was allocated to the Second Respondent arbitrator for
arbitration.
[4]
The matter was arbitrated on the merits thereof and in an award dated
16 September 2009, the Second Respondent determined that
the
dismissal of the Applicant by the Third Respondent had been
procedurally and substantively fair, and she consequently made
an
award that the Applicant’s referral be dismissed with no order
as to costs.
[5]
The Applicant submits that this award by the Second Respondent is
reviewable and consequently brought the application which
I have been
required to consider.
Background
facts
[6]
At the time of his dismissal, the Applicant was employed by the Third
Respondent and held the rank of Sergeant.
[7]
The events that culminated in the dismissal of the Applicant occurred
on 19 February 2009. On the papers, the following facts
regarding the
events appear to be common cause:
a.
The Applicant and two other officers, one Motaung and one Bukwana
were patrolling the area known as Katlehong Gardens on 19 February
2009 when they heard sirens;
b.
They immediately drove to the area where they believed the sirens to
be coming from;
c.
Upon their arrival at the scene they were met by an officer who
identified himself as being from the VIP Protection unit;
d.
The officer informed them that a hijacking had just taken place;
e.
They were furthermore informed that the VIP officers were driving
behind the victim’s vehicle when the hi-jacking occurred;
f.
One of the VIP officers chased the perpetrators whilst the one
remained at the scene; and
g.
The officer that remained at the scene was the one that informed the
Applicant, Motaung and Bukwana about the incident at their
arrival
and who pointed them in the direction that the perpetrators had fled.
[8]
The evidence as to what occurred after this point on 19 February 2009
is in dispute between the parties. It is therefore necessary
to
shortly summarize the conflicting versions presented by the parties,
which is essential to the question of whether the second
respondent’s
award is reviewable.
[9]
The Applicant avers that when he and his colleagues approached the
VIP officer he pointed in a specific direction, assumingly
showing
them the direction in which the perpetrators had fled. The Applicant
explained that he then got out of the vehicle they
were patrolling in
and remained at the scene where the VIP officer was. According to his
version Bukwana and Motaung went after
the perpetrators in the patrol
vehicle in the direction that the VIP officer had pointed out.
[10]
The Applicant furthermore alleges that he remained with the VIP
officer to secure the initial scene of the crime. According
to his
version, the second VIP officer soon returned to the scene to collect
the victim of the hijacking, which he refers to only
as Caldeira.
[11]
It was at the return of this officer that Calderia informed the three
of them that his vehicle contained an amount of approximately
R50,000.00 which he had intended to deposit at his banking
institution as well as his mobile phone.
[12]
The Applicant alleges that at this point he contacted Bukwana and
Motaung who had not yet arrived back from their pursuit of
the
hijackers and advised them that Caldeira had been collected from the
scene and that the second officer from the VIP Protection
Unit had
returned. The VIP officers then accompanied Caldeira to the police
station so that he could make a statement and open
a case in respect
of the hijacking. The Applicant waited for his colleagues.
[13]
According to the Applicant when Bukwana and Motaung returned they
informed him that members of the community had pointed them
towards a
house where the hijackers might have fled to. After Bukwana and
Motaung gained access to the premises they found an unidentified
man
hiding behind the wall of the premises.
[14]
Bukwana and Motaung further informed the Applicant that they
questioned the man and placed him under arrest on suspicion of
involvement in the hi-jacking of Caldeira’s vehicle but that
they had later released him as the community members and the
VIP
member had advised them that this man was innocent and was not
involved in the incident.
[15]
On the Applicant’s version he then returned with his colleagues
to Katlehong Police Station. Upon their arrival they
found Caldeira
and they sought out Captain Kganyago, their shift Commander, and
explained to him what happened to Caldeira.
[16]
The Applicant proceeded with his usual duties and at about 17H00,
after he had completed the parade, he returned to the Police
Station
where he was confronted by two adult males whom he recognized as
residents from his township.
[17]
The two males identified themselves as Mr Dladla and Mr Sthembiso.
Dladla advised the Applicant that he knew he was at the
hi-jacking
scene and was investigating the incident. Dladla then proceeded to
confess to the hijacking and attempted to solicit
a favour from the
applicant.
[18]
The Applicant called Motaung, who in turn called Chief Commander
Kganyago. When Kganyago arrived, Dladla started speaking loudly
about
his share in the money and accused the Applicant of taking the money.
[19]
It seems at this time several officers gathered around the scene
where Dladla was confronting the Applicant and these officers
began
assaulting Dladla and Sthembiso. The Applicant maintains that he was
not involved in this attack.
[20]
The suspects were subsequently taken in for questioning by Motaung.
During this time Dladla indicated that the other suspect,
one
Masiteng, was sitting outside in a vehicle. Motaung collected
Masiteng and released Sthembiso.
[21]
The following day, the Applicant reported for duty and was advised by
Kganyago not to report for duty as Superintendent Buthelezi
wanted to
see him and his colleagues regarding the incidents that occurred the
previous day.
[22]
During this meeting, the applicant and his colleagues were accused of
taking the money that was left in the hijacked vehicle
the previous
day. They were arrested. They were later booked out of the cells.
[23]
The Applicant alleges that during the interviews with Buthelezi, he
was threatened and was specifically questioned about any
cash amounts
that he may have had in his possession during the time prior to his
arrest. He at this point disclosed that he had
withdrawn a large
amount of cash which he left with his wife and which he had withdrawn
to undertake renovations at his home.
[24]
Applicant and the officers whom arrested him subsequently attended at
the applicant’s wife’s place of employ to
collect the
amount of cash allegedly withdrawn for renovations and were informed
that the money had been given to the sister of
the applicant’s
wife. The money was later found with this individual. The applicant
was shortly thereafter charged with the
charges that lead to his
dismissal.
[25]
The Third Respondent in turn and through its witnesses, which
included Masiteng, lead evidence to the fact that Masiteng had
been
travelling from Palm Ridge when he entered a passageway at Kathlehong
Gardens were he saw a Toyota Tazz driving at high speed.
[26]
The Toyota Tazz came to a stop just before the passageway that
Masiteng was in and two boys alighted whom quickly ran off.
A moment
later, a Volkswagen Polo which appeared to have been chasing the
Toyota Tazz, also came to a stop behind the Tazz and
a single man got
out and chased after the boys.
[27]
During the pursuit one of the boys appeared to have dropped a candle
box. Masiteng picked up the box and discovered money and
a cell phone
inside the box.
[28]
Shortly after this a police van appeared which the Applicant, Motaung
and Bukwana occupied. Masiteng threw the box and its
contents into
the yard of one of the houses he was walking next to at the time.
Unfortunately the Applicant, Motaung and Bukwana
had already seen him
at this time.
[29]
The officers stopped Masiteng and bundled into the back of the police
van. He informed the applicant and his colleagues that
the box he had
thrown into the yard contained money. Motaung and the applicant
jumped the wall into the premises where Masiteng
had thrown the box.
Upon their return they alleged that no money was found in the box and
that only the cell phone was recovered.
[30]
Masiteng testified in this regard that upon the officer’s
return Motaung’s bulletproof vest was bulging and thus
he
assumed that the money had been hidden underneath the vest.
[31]
Masiteng alleges that he was then put in the front of the vehicle and
the applicant and the other officers drove away with
him. He
furthermore explained that at some point during this trip a Toyota
Tazz, driven by Caldeira stopped next to them and the
Applicant told
him to hunch down in the car so that Calderia could not see him.
Calderia asked if they had found the suspects to
which the Applicant
and the officers confirmed that they had not.
[32]
They drove around for a short while before they ordered Masiteng out
of the vehicle. He asked them for a R1000.00 but he was
told to get
away.
[33]
Masiteng furthermore testified that later that day he told Dladla and
Sthembiso what had happened. They accordingly went to
the police
station and approached the applicant with regards to the money taken
from Masiteng earlier that day. It was then that
Masiteng and Dladla
were arrested and assaulted by the applicant and his colleagues.
[34]
It appears that during the confrontation one officer heard the
allegations made by Masiteng and Dladla and that this ultimately
lead
to the investigation and arrests of the Applicant.
[35]
During the disciplinary enquiry, the Applicant maintained that he did
not commit any of the actions for which he had been charged.
Even
after having been found guilty in the disciplinary hearing and
dismissed, the Applicant maintained his innocence during the
arbitration proceedings.
Legal
Grounds for Review
[36]
The legal grounds on which the review of an arbitration award can be
granted have been considered by several courts, including
the
Constitutional Court and have now become well entrenched in
employment law. The threshold test that an applicant for review
has
to meet and as enunciated by the Constitutional Court in the
Sidumo
-matter is whether, the award of the arbitrator amounts
to a decision which a reasonable decision-maker could not come to
under
the circumstances.
[37]
In
Herholdt
v Nedbank Ltd
[2]
,
the
Supreme Court of Appeal restated the test as set out in
Sidumo
and held as follows:
‘
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 by
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’.
[38]
It is against this jurisprudence that I now deal with the award of
the second respondent.
Evaluation
[39]
The applicant contended that the panelist committed a gross
irregularity in the conduct of the arbitration proceedings, exceeded
her powers and committed misconduct in relation to her duties as a
panelist.
[40]
The Applicant supports these allegations by pointing out that the
Second Respondent allegedly made material errors of law with
respect
to her findings when she was faced with conflicting versions of
evidence on the issue of the theft of the money.
[41]
The Applicant further avers that the Second Respondent failed to
appreciate the fact that the Applicant for the most part and
on his
version was not with
Motaung and Bukwana
during
the sequence of events and that the common purpose doctrine was
accordingly incorrectly applied to the circumstances.
[42]
In addition to the above, it is alleged that the Second Respondent
failed to consider the confessions extracted from Masiteng
and Dladla
and that she ignored the evidence given by Caldeira during the
disciplinary hearing.
[43]
Lastly it is alleged that the Second Respondent failed to take into
account the fact that the Applicant stayed behind at the
scene while
his colleagues pursued the suspects.
[44]
As such it is averred that the Second Respondent was grossly
negligent in performance of her duties in that she failed to evaluate
all of the evidence placed before her and that her award as a result
is not rationally justifiable having regard to the material
properly
available to her at the time of the arbitration.
[45]
Having considered the arbitration award and the record of review
which is voluminous, I do not agree with the grounds of review
and
the conclusions drawn by the applicant. It is clear from the
arbitration award and transcribed record that the Second Respondent
was able to identify that there were two conflicting versions before
her and that she evaluated these versions in order to establish
which
version, on a balance of probabilities was more likely to be the true
version of events.
[46]
I do not agree with the Applicant’s argument that the Second
Respondent applied a so-called reasonable criminal test
in coming to
her finding and/or that she applied the doctrine of common purpose at
all. It is clear from her award, in my view,
that the Second
Respondent, in weighing up the probability of the version presented
by the Applicant, merely found that the version
presented by the
Applicant had been improbable and that the only reasonable inference
that could be drawn from the evidence was
that the version presented
by Masiteng was the true version of events.
[47]
She clearly rejected the version of the Applicant that he had stayed
behind whilst Motaung and Bukwana pursued the alleged
perpetrators
and accordingly found that the Applicant had been directly involved
in the events on that day. There would have therefore
been no need
for her to apply the common purpose doctrine when evaluating the
evidence and coming to her award.
[48]
I agree with the Third Respondent in this regard that it was
extremely significant that the version of the Applicant was not
put
to Masiteng during his evidence in chief, but was only later
presented in the Applicant’s examination in chief.
[49]
For obvious reasons this version was therefore untested and should at
the very least have been attached little weight by the
Second
Respondent
[3]
.
[50]
As this was core to the Applicant’s version of events, I fail
to understand why the Applicant would have omitted putting
such a
crucial part of his defense to Masiteng. I in this regard have to
consider the principles applied in the Constitutional
Court regarding
failure to cross examine a witness.
[51]
I therefore, agree with the Second Respondent’s finding in the
evaluation of the evidence that if indeed the Applicant
was not
present at the scene when the money was allegedly taken, Masiteng
would not have been able to positively identify the Applicant
and his
colleagues. The Applicant should have at the very least have put his
version to Masiteng and/or provide the evidence needed
to exonerate
himself.
[52]
It would also have been relatively easy for the Applicant to have
discharged his evidentiary burden in relation to his version
to have
lead the evidence of the VIP Protection Unit officer whom he
allegedly remained behind with while Motaung and Bukwana pursued
the
suspects.
[53]
In this regard, I therefore, find that the Second Respondent
considered all the material evidence before her and reached a
reasonable conclusion after properly considering and evaluating the
evidence that was before her.
This ground for
review therefore has to fail.
[54]
The Applicant further contended that the Second Respondent was
grossly negligent in performing her duties with regards thereto
that
the Second Respondent failed to consider the source of the money
which was found in his wife’s sister’s possession
and
that he was therefore painted with the same brush as his co–accused,
who were also found in possession of large amounts
of cash.
[55]
Once again, I do not agree with what has been contended for in this
regard. The Second Respondent set out in detail in her
award the
different reasons provided by the Applicant and his colleagues for
the large amounts of cash found in their possession.
[56]
After having done so, the Second Respondent clearly found that it was
too great of a coincidence that all the accused had such
large
amounts of money in their possession a day after it was alleged they
took the money from Masiteng and that the amounts were
similar
amounts. I am of the view that the applicant’s version of how
he came about to have that amount of money is in any
event not
probable.
[57]
I am of the view that the slight contradictions which were alleged in
relation to Masiteng’s evidence during the arbitration
proceedings and the disciplinary hearing did not affect the
credibility of his oral evidence during the arbitration proceedings
to such an extent that it should have been ignored.
[58]
Masiteng’s testimony regarding the bag which the money was
(whether it was an FNB bag or Standard Bank bag) does not
render the
Second Respondent’s award reviewable on its own or in context
of the further allegations made by the Applicant.
[59]
As the remaining grounds of review relate to the grounds which I have
already dealt with I am not going to deal with them separately
save
to state that on the whole I am of the view that the grounds of
review alleged by the Applicant are not sufficient to render
the
arbitration award reviewable.
[60]
The Second Respondent took into consideration all the evidence that
was before her and when faced with conflicting versions
of evidence
correctly weighed up the probabilities of the one version against the
other.
[61]
I am accordingly, not convinced that the Second Respondent came to a
conclusion that is so unreasonable that a reasonable decision
maker
could not come to the same conclusions on the facts presented to her.
[62]
The Applicant’s application for review must therefore fail.
Order
[63]
In the premises, I make the following order:
1.
The Applicant’s review application is dismissed.
2.
There is no order as to costs.
Lancaster
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant: T Nkosi of the Wits Law Clinic
For
the Respondent: S B Nhlapo of the State Attorney
[1]
No 66 of 1995.
[2]
(2013) 34
ILJ
2795 (SCA) at para 25. See also 2013 (6) SA 224 (SCA); [2013] 11
BLLR 1074 (SCA).
[3]
In the Constitutional Court matter of
President
of the Republic of SA & others v SA Rugby Football Union &
others,
2000 (1) SA 1
(CC) at paras 61-63;
1999
(10) BCLR 1059
(CC)
it was held that: ‘The institution of cross-examination not
only constitutes a right, it also imposes certain obligations.
As a
general rule it is essential, when it is intended to suggest that a
witness is not speaking the truth on a particular point,
to
direct the witness's attention to the fact by questions put in
cross-examination showing that the imputation is intended to
be made
and to afford the witness an opportunity, while still in the witness
box, of giving any explanation open to the witness
and of defending
his or her character (own emphasis).
If
a point in dispute is left unchallenged in cross-examination, the
party calling the witness is entitled to assume that the
unchallenged witness's testimony is accepted as correct. This rule
was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our courts. The
rule in
Browne
v Dunn
is not merely one of professional practice but “is essential
to fair play and fair dealing with witnesses". It is
still
current in England and has been adopted and followed in
substantially the same form in the Commonwealth jurisdictions.
The
precise nature of the imputation should be made clear to the witness
so that it can be met and destroyed, particularly where
the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only that
the evidence
is to be challenged but also how it is to be challenged. This is so
because the witness must be given an opportunity
to deny the
challenge, to call corroborative evidence, to qualify the evidence
given by the witness or others and to explain
contradictions on
which reliance is to be placed’.