About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 230
|
|
POPCRU obo Gwangwa v Maree NO SSSBC and Another (J2681/2012) [2015] ZALCJHB 230 (30 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: J 2681/2012
DATE:
30 JULY 2015
Not
Reportable
POPCRU
obo SGT TS
GWANGWA
.......................................................................................
Applicant
And
MAREE
N O
SSSBC
....................................................................................................
First
Respondent
MINISTER
OF
POLICE
.........................................................................................
Second
Respondent
Heard:29
July 2015
Delivered:30
July 2015
Judgment
GUSH
J
[1]
This is an application to review and set
aside an award made by the 1
st
respondent in terms of which award the 1
st
respondent concluded that the applicant was fairly dismissed but that
the procedure followed by the 3
rd
respondent was unfair.
[2]
The 1
st
respondent ordered the 3
rd
respondent to pay the applicant compensation in an amount equivalent
to one month’s salary namely R9959.50.
[3]
The applicant was prior to his dismissal on
13 January 2011 employed by the 3
rd
respondent as a police sergeant.
[4]
The incident that led to the applicant’s
dismissal occurred on 21 April 2010. The applicant together with a
colleague the
detained a member of the public “Jimmy Mvungalo”,
a Tanzanian businessman resident in South Africa for approximately
9
years.
[5]
The applicant had attempted stop Jimmy who
was driving his motor vehicle in Pretoria. The applicant averred that
he recognised Jimmy
as being a drug dealer. As the applicant was in
an unmarked car Jimmy did not stop but proceeded to the Sunnyside
police station
where according to him he was dragged from his motor
vehicle and taken into the police station. Jimmy avers that he was
assaulted
by inter alia the applicant and kicked him whilst in the
cells. The applicant testified that he “grabbed the suspects
hand
and walked him into the police station straight to the cells
where he was searched for drugs. No drugs were found.
[6]
The applicant later took Jimmy to his house
where his wife notice that he Jimmy had been assaulted. There are
allegations made by
Jimmy that the applicant had taken money from him
an allegation denied by the applicant.
[7]
As a result of this incident the applicant
was charged as follows:
in terms of section
40 of the South African police service act 1995 (act number 68 of
1995) read with the South African police service
discipline
regulations 2006 you are hereby charged with misconduct in that you
allegedly contravened regulation 20 (D) the said
regulation that near
Pretoria on 21 April 2010 during plus -21 H00 whilst on duty
conducted yourself in an improper disgraceful
and unacceptable manner
by assaulting Mr Jimmy with your hands for no apparent reason.
[8]
Following a disciplinary enquiry the
applicant was found guilty of this misconduct and his services were
terminated. Dissatisfied,
the applicant referred a dispute regarding
his dismissal to the 2
nd
respondent who in turn appointed the 1
st
respondent to conduct the arbitration.
[9]
The applicant filed a founding affidavit
followed by the record and a rule 7A (8) affidavit in which he
elected to abide by his
founding affidavit. For reasons which the
applicants attorney was unable to explain it was no attempt made
whatsoever to file the
substantial bundle of documents presented to
the 1
st
respondent at the arbitration.
[10]
Insofar as it is possible to comprehend the
applicants grounds of appeal as set out in his founding affidavit it
would appear that
the applicant relies on an averment that the 1
st
respondent committed misconduct by concluding that he had been
substantively fairly dismissed albeit that the 3
rd
respondents procedure was unfair.
[11]
In dealing with what the applicant referred
to as “reasons for review” the so-called reasons are
prefixed by a reference
to the award. In the majority of cases it is
impossible to determine what the link is between the paragraph in the
award referred
to and the so-called reason enumerated in the founding
affidavit.
[12]
The matter was stood down to enable the
applicant’s attorney to remedy this and later despite his
assurance that he had resolved
this issue was unable to explain the
references or the grounds of review.
[13]
As far as it is possible to understand the
applicant’s grounds the applicant appeared to rely on an
averment that the 1
st
respondent misconducted himself when he concluded that, after a
thorough analysis of the evidence,
I accept on a
balance of probabilities the evidence presented on behalf of the
respondent that the applicant assaulted Mr Mvugalo
with his hands and
thus acted in an improper disgraceful and unacceptable manner.
[14]
The 1st respondent’s conclusion was
that the dismissal was substantively fair.
[15]
As far as the procedure is concerned the
1
st
respondent having considered the argument of the applicants and the
evidence of the chairperson of the disciplinary enquiry into
the
following logical and reasonable conclusion:
in determining
procedural fairness one has to have regard to the disciplinary
regulations of the respondent, schedule 8 of the LRA
and the guiding
principles laid down by the above case law. The essence of procedural
fairness has a right to be heard as entrenched
in the rules of
natural justice and particularly in the Audi alteram principle which
includes a right to challenge evidence. There
is not one iota of
evidence to show that the applicant had been denied this. However, I
do accept that the respondent had failed
to follow its own procedures
regarding timeframe. This however did not render the rest the
procedure unfair and especially did
not impact on the basic right to
be heard and to dispute evidence.
[16]
Somewhat generously the 1
st
respondent concluded that this failure to follow the timeframes
warranted compensation in an amount equivalent to one month’s
salary.
[17]
The 1
st
respondents award sets out in some detail the evidence adduced at the
arbitration, and analysis of that evidence and a conclusion
that
satisfies the test to be applied on review.
[18]
The
prevailing test to determine the reviewability of an arbitration
award is set out in the matter of Herholdt v Nedbank Limited
[1]
.
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.
[19]
The Labour Appeal Court in a judgement
handed down shortly after the Herholdt decision said the following:
[15]
…
That being the case, it serves no
purpose for the reviewing court to consider and analyse every issue
raised at the arbitration
and regard failure by the arbitrator to
consider all or some of the issues
albeit
material as rendering the award liable to be set aside on the grounds
of process-related review.
[
16]
In short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the
facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he or she arrived at.
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient ground for interference
by the
reviewing court.
The
fact that an arbitrator commits a process-related irregularity does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[2]
[20]
It is abundantly clear from the award that
the 1
st
respondent understood and considered the principal issue before him,
evaluated the facts presented at the arbitration and came
to a
conclusion that was reasonable taking into account the material
placed before him.
[21]
Despite the applicant’s argument to
the contrary the weighing up of the conflicting evidence by the 1
st
respondent cannot be construed in any way whatsoever to be
misconduct. In fact the 1
st
respondents conduct in this regard simply served to confirm that he
discharged his functions as an arbitrator correctly
[22]
there is no reason why the costs should not
follow the result
[23]
application dismissed with costs
Gush J
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE
APPLICANT: C R du Plessis: Kleinkenberg Inc
FOR THE
RESPONDENT: Adv G Kinghorn
Instructed
by Frans F Erasmus Attorneys
[1]
2013 (6) SA 224
(SCA) at paragraph 25
[2]
Goldfields v CCMA J2/2012 paras 15 - 17