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[2015] ZALCJHB 75
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Ragimana v Minister of Police and Others (JR1738/13) [2015] ZALCJHB 75 (3 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case Number: JR1738/13
Not Reportable
DATE: 03 MARCH 2015
In the matter between:
MULALO ALBERT
RAGIMANA
..........................................................................................
Applicant
And
MINISTER OF
POLICE
.............................................................................................
First
Respondent
NATIONAL COMMISSIONER OF THE
SAPS
...................................................
Second
Respondent
THE SOUTH AFRICAN POLICE
SERVICES
.......................................................
Third
Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL
................
Fourth
Respondent
COMMISSIONER PRINCE KEKANA
N.O
.............................................................
Fifth
Respondent
Heard: 23 January 2015
Delivered: 03 March 2015
JUDGMENT
MALAN AJ
Introduction
[1] This is an application to review
and set aside an arbitration award handed down by the Fifth
Respondent under the auspices of
the Fourth Respondent.
[2] In the arbitration award that is
the subject of this review application the Fifth Respondent held that
the dismissal of the
Applicant by the Third Respondent was both
procedurally and substantively fair.
[3] The Applicant was, prior to his
dismissal, a senior police officer with the rank of Colonel employed
in the legal advisory section
of the Third Respondent.
[4] The review grounds advanced by the
Applicant, as clarified with Applicant’s representative in the
course of argument before
the Court, fall into two broad categories.
The first category relates to certain so called points in limine
raised by the Applicant
at the arbitration proceedings and the second
grouping of review grounds relate to criticism of the Fifth
Respondent’s findings
in relation to substantive fairness and
particularly the finding that there was a substantively fair reason
for the dismissal of
the Applicant. It was also clarified in argument
that the first grouping of review grounds only potentially impact on
the procedural
fairness of the Applicant’s dismissal.
The Review grounds relating to the
points in limine
[5] In relation to the first so called
point in limine that was raised at the arbitration proceedings, the
gist of the argument
presented to this Court is that the period of
more than a year between the commission of the alleged disciplinary
offence that
resulted in the dismissal and the completion of the
disciplinary proceedings was such an excessive delay that it rendered
the subsequent
dismissal procedurally unfair. The argument for
purposes of the review application then appears to be that the Fifth
Respondent
should have held the dismissal of the Applicant to have
been procedurally unfair as a result of the delay in instituting and
completing
disciplinary proceedings.
[6] The contention which the Court was
invited to accept, to the effect that the delay in instituting and
completing disciplinary
process is unexplained, is not entirely
consistent with the facts as they appear from the papers before the
Court. The factual
circumstances surrounding the delay are mostly
uncontroversial to the extent that the Applicant is not in a position
to gainsay
the First to Third Respondent’s version of why and
how the delay occurred.
[7] It is apparent that the matter
never truly became dormant over the approximately one year period
that it took to bring to disciplinary
finality and that there was
always some activity over the period to try to bring the matter to a
close. Although the delay may
be the subject of legitimate criticism
there were some circumstances that contributed substantially to the
delay, such as the recusal
of successive nominated chairpersons of
the disciplinary enquiry that fell outside the employer’s
powers to prevent. It in
any event does not appear that the delay in
any way compromised the Applicant’s ability to mount a defence
to the disciplinary
allegations nor did it materially prejudice him
in any other way. The fact that there was some inconsistency detected
with his
travel claim became known to the Applicant very soon after
the claim was first lodged and he became aware within a few months
that
the matter was under investigation. Although the investigation
did not proceed with any degree of haste the period over which it
was
instituted, continued to finality and the fact that it was then
followed up with disciplinary action after the investigation
was
concluded does not suggest that there was ever a waiver of the right
to take disciplinary action. The Applicant was also not
materially
prejudiced by the delay insofar as he remained in employment on full
remuneration and benefits and was not suspended.
[8] Although the handling of this
matter most certainly does not represent a model of speed and
efficiently, the view adopted by
the Fifth Respondent in regard to
the delay represents a decision that a reasonable decision-maker
could have come to. The view
that the delay although substantial, was
sufficiently explained and, that the overall circumstances were such
that no real procedural
unfairness to the Applicant resulted, does
not appear unreasonable or irrational in the circumstances.
[9] The further point in limine that
relates to the splitting of disciplinary charges is also of no
particular consequence as it
is apparent from the record of the
arbitration proceedings that the Applicant at all times knew what the
core allegations against
him were and what he needed to answer to.
There is no indication in the arbitration award or the record that
the core allegations
of attempting to act dishonestly and in fact
fraudulently in terms of a specific travel claim was considered to be
either more
or less serious as a result of being described in several
separate and somewhat repetitious paragraphs in the “charge
sheet”.
The requirement of fairness in relation to the
Applicant being made aware of the charges was therefore met in the
circumstances
and the style and format adopted by the drafters of the
allegations, even if it could have been more compact, did not result
in
any procedural unfairness.
[10] In terms of the Fifth Respondent’s
assessment of the points in limine as raised in the arbitration this
Court is of the
view that his decision making reflects at least that
of a reasonable decision maker and therefore, in accordance with the
review
test enunciated by Supreme Court of Appeal in the matter of
Herhold v Nedbank Limited (congress of SA Trade Unions as amicus
curiae)
(2013) 34 ILJ 2795 (SCA) and the Labour Appeal Court in the
subsequent judgment in the matter of Gold Fields Mining SA (Pty) Ltd
(Kloof Gold Mine) v CCMA and Others (2014) 35 ILJ 943 (LAC), cannot
be interfered with by this Court. It follows that the review
application must, to this extent, fail.
The Review grounds relating to
substantive fairness
[11] In relation to the issue of
substantive fairness, the Applicant’s representative has urged
this Court to accept that
the burden of proof was not discharged by
the First to Fourth Respondent in the course of the arbitration
proceedings and that
in the circumstances a dismissible offence was
not proven. The Court pauses at this point to again point out that it
is not sufficient,
for purposes of meeting the applicable review
test, for the Court to be persuaded to disagree with the factual
findings made in
the arbitration award under scrutiny. The Court may
only interfere if it concludes that the ultimate decision and outcome
of the
relevant award reflects a decision and/or outcome which a
reasonable decision maker could not arrive at. The Court should not
be
tempted to simply impose its own views in relation to whether the
award is correct or not as this would be tantamount to dealing
with
the matter as an appeal.
[12] In the present matter the
arbitration record reveals that it was common cause that the
Applicant was entitled to submit a travel
claim for expenses incurred
for accommodation in Cape Town for the 23rd and 24th of May 2011
totalling no more than R1 000.00 (one
thousand rand). The claim was
clearly intended to be re-imbursive in nature and therefore
presupposed that the Applicant had first
disbursed his own funds for
accommodation for the two nights in question and that he incurred the
expense for purposes of executing
his duties as a police officer. It
was further common cause that a claim was received by a chief
accounting clerk Ms Maxine Kock
(“Ms Kock”) of the Third
Respondent reflecting a claim in favour of the Applicant in the
amount of R990.00 (nine hundred
and ninety rand) in relation to an
amount supposedly incurred by the Applicant for accommodation at the
Vineyard Hotel and Spa
on 23 and 24 May 2011.
[13] In attempting to discredit the
evidence of Ms Kock much was made by the Applicant’s
representative of the fact that Ms
Kock made two statements in
separate affidavits in relation to the delivery of the relevant
accommodation claim to her. The first
statement records that she
received the claim from the Applicant and the second statement goes
further to state that she did not
receive the claim directly but
found the claim form on her desk. The Court was urged by the
Applicant’s representative to
consider this as a contradiction
which is fatal to the credibility of Ms Kock’s evidence and
which should have resulted in
the Fifth Respondent rejecting her
evidence.
[14] The contention that the two
statements by Ms Kock contradict each other does not, with respect,
appear to be correct. The first
statement does not exclude the
possibility that the document in question was received indirectly and
makes no specific reference
to the manner in which the claim was
delivered or received. The second statement is simply more specific
than the first statement
and elaborates on the first statement
without contradicting it. The Court is therefore satisfied that the
content of the two statements
in question do not serve to discredit
Ms Kock’s evidence in any way.
[15] Even if the Court were wrong
regard to Ms Kock’s evidence it would with respect make little
difference to the reasonableness
of the ultimate factual assessment
in the matter as it appears to have been common cause that a travel
claim relating to accommodation
at the Vineyard Hotel and Spa was
submitted to Ms Kock in the Applicant’s name, that the
Applicant had in fact never stayed
at the Vineyard Hotel and Spa at
any time and furthermore that the Applicant came and retrieved the
claim in question from Ms Kock
and submitted a new claim. All the
factual elements of significance in Ms Kock’s evidence were
therefore in any event common
cause.
[16] It furthermore appears to be
common cause that the Applicant then submitted a travel claim which
reflected that he had supposedly
resided at a guest house called
Costa Del Sol on the dates in question.
[17] The owner of Costa Del Sol, a Mr
Lalu, gave evidence at the arbitration proceedings which evidence is
reflected in the arbitration
record before the Court. Mr Lalu
explained that the Applicant had not stayed at Costa del Sol on the
dates in question. According
to Mr Lalu, the Applicant had in fact
booked and paid to come and stay at Cost del Sol at a later stage but
had asked that the
invoice be backdated to reflect that he stayed at
the guesthouse on 23 and 24 May 2011. According to Mr Lalu he acceded
to the
request to backdate the invoice. Mr Lalu’s evidence
indicates that he attached little significance to the backdating of
the
invoice as he was not aware of the reason for the request but he
however, also testified that he was asked by the Applicant on several
occasions to confirm, if asked, that the Applicant had in fact
resided there on 23 and 24 May 2011.
[18] It is noticeable from the record
that in the cross examination of Mr Lalu much is made of peripheral
issues such as the fact
that a draft statement was provided to him by
the investigating officer. No specific factual versions were however,
put to Lalu
to either contest or confirm his evidence that the
Applicant did not stay at Costa del Sol on the relevant dates.
Although it was
put to the Court from the bar that the Applicant had
in fact stayed at Costa Del Sol on 23 and 24 May 2011 no such version
was
ever put to Mr Lalu.
[19] In the view of this Court, the
Fifth Respondent’s decision to accept Mr Lalu’s evidence
in the absence of any specific
version or direct evidence from the
Applicant regarding the events of 23 ad 24 May 2011 is at the very
least a decision that a
reasonable decision maker would come to.
[20] The submission advanced to this
Court to the effect that the evidence in relation to Costa Del Sol
accommodation issue was
not relevant to the charges against the
Applicant (which only made direct reference to the Vineyard Hotel and
Spa) and should have
been disregarded by the Fifth Respondent is not
persuasive. It must have been readily apparent at all times that the
import of
the evidence relating to Costa del Sol was that such
evidence suggests strongly that the Applicant attempted to cover his
tracks
in relation to the attempted fraudulent travel claim in
relation to the Vineyard Hotel and Spa with a further falsehood by
pretending
that he had incurred a legitimate accommodation expense in
relation to Costa del Sol. If Mr Lalu’s evidence is accepted,
it is apparent that the Applicant wanted to place himself in a
position to argue that he had a valid accommodation claim for the
dates in question albeit in relation to a different accommodation
provider. The payment of an amount to Costa del Sol and the request
to backdate the invoice to reflect use of accommodation by the
Applicant on the 23rd and 24 of May 2011, coupled with a request
to
Mr Lalu to lie about the issue, could have no other logical
implication. The evidence of Mr Lalu was therefore relevant to the
assessment of the probabilities that the Applicant was in fact
responsible for the fraudulent accommodation claim relating to the
Vineyard Hotel and Spa.
[21] The Applicant’s failure to
give evidence at the arbitration to explain what had in fact happened
on the relevant dates
in 2011 was, in the circumstances, always
likely to be fatal to his case.
[22] This Court is in respectful
agreement with the submission of Counsel for the First to Third
Respondents that although the burden
to prove a fair reason for
dismissal may have resided with the employer party initially clearly
the evidentiary burden had shifted
to the Applicant during the course
of arbitration proceedings. To have held otherwise would in the view
of this Court have been
rationally unjustifiable and the view adopted
of the matter by the Fifth Respondent, is with respect the view that
any rational
decision maker would have come to in the circumstances.
For the Applicant to have succeeded in the matter, it would have been
necessary
for an arbitrator or this Court to arrive at a speculative
and unjustified conclusion to the effect that parties unknown had
constructed
an elaborate Machiavellian scheme to incriminate the
Applicant. The evidence as reflected in the record of the arbitration
proceedings
provides no basis whatsoever for such a conclusion. There
simply appears to be no logical reason why anybody other than the
Applicant
would have handed in the initial fraudulent travel claim as
the Applicant would have benefitted directly if the claim had been
paid.
[23] It furthermore seems inconceivable
that Mr Lalu, somewhat to his own potential personal detriment and
for no conceivable reason,
would voluntarily step forward and admit
that he had backdated an invoice at the request of the Applicant and
furthermore explain
that the Applicant had asked him to falsely
confirm that he had resided at his guest house. It furthermore seems
even more inconceivable
that if the Applicant had in fact stayed at
Costa Del Sol, he would not have instructed his legal representative
at the arbitration
to put this as a clear version to Mr Lalu in cross
examination.
[24] The Applicant’s decision not
to give evidence to explain exactly where he was and what he did on
the days in question
and his failure to at least attempt to advance
some explanation of how and why the fraudulent claim in his name in
relation to
the Vineyard Hotel and Spa appeared left the Fifth
Respondent with no reasonable alternative but to accept the evidence
against
the Applicant.
[25] The issue of the appropriateness
of the dismissal sanction applied by the Fifth Respondent was raised
at a point in argument
before this Court, as this Court understands
it, with particular reference to whether the rules in relation to
travel claims were
sufficiently clear to justify the dismissal
sanction in this instance. This proposition requires brief comment.
It is the view
of this Court that it is self-evident that a senior
police officer must at all times maintain the highest level of
integrity and
honesty in the execution of his or her duties. The
nature of police work and the prevalence of corruption and dishonesty
in society
demands that any departure by a senior police officer from
the highest standards of honesty and integrity be visited with
summary
dismissal. It would be entirely inimical to the public
interest in the maintenance of law and order, to allow for any degree
of
deviation from this principle. The First to Third Respondents, and
indeed the South African public, are entitled to expect no less.
In
the circumstances of this matter, it is apparent that the rule which
was breached is not only a rule relating to travel claims.
If the
factual findings of the Fifth Respondent are to be accepted then the
Applicant breached rules of honesty and integrity which
should be
clear to any police officer without any specific explanation or
recordal of such rules in writing.
[26] It follows that the Court is not
persuaded that there is any merit also in the attempt to review the
findings of the Fifth
Respondent in relation to substantive fairness,
which findings seem to be entirely consistent with the evidence
placed in front
of him in the arbitration proceedings.
[27] In light of the findings that the
Court has arrived at in relation to the application itself the issue
which remains to be
considered is the costs of this application. This
Court has over time shown an understandable reluctance to impose the
financial
burden of cost orders on individual litigants. The awarding
of costs however remains a discretion which this Court must exercise
in fairness to all parties. The Court has on a previous occasion not
hesitated to order the First to Fourth Respondents to pay
the
Applicant’s costs in relation to the condonation and
postponement of the matter to the extent that the actions of the
First to Fourth Respondent caused the Applicant to incur unnecessary
legal costs in this regard. In the circumstances of this matter,
the
Court is however, in relation to the review application itself, not
persuaded that the Applicant has acted in good faith in
pursuing the
matter. The Court must in this regard take cognisance of the fact
that the review application is entirely without
merit and has
resulted in the First to Fourth Respondents, and indirectly the South
African taxpayer, incurring the cost of opposing
the application. The
decision of the Applicant to pursue this matter further before this
Court despite his failure to provide any
direct evidence at the
arbitration proceedings appears particularly unreasonable in the
circumstances. It is fair that the Applicant
must in the
circumstances be fixed with the consequences of his actions. It is
also necessary, from a policy perspective, that
litigants should be
actively discouraged from burdening this Court with applications of
this nature.
[28] The Court accordingly orders as
follows:
1 The review application is dismissed.
2 The Applicant is ordered to pay the
First to Fourth Respondent’s costs in relation to the review
application.
Malan AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the Applicant: M A Maoba
Instructed by: Maoba Attorneys
For the Respondent: Adv. D Mtsweni
Instructed by: State Attorney