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[2015] ZALCPE 20
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Minister of Police v Safety and Security Sectoral Bargaining Council (SSSBC) and Others (P582/2011) [2015] ZALCPE 20 (24 March 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa,
in Port Elizabeth
Judgment
Case
no: P 582/2011
DATE:
24 MARCH 2015
Of
Interest to Other Judges
In
the matter between:
Minister
of
Police
.......................................................................................................................
Applicant
And
Safety
And Security Sectoral Bargaining Council
(SSSBC)
.....................................
First
Respondent
Malusi
Mbuli
(N.o.)
..................................................................................................
Second
Respondent
Vuyile
Senene
...............................................................................................................
Third
Respondent
Nomageniya
Hombile
...............................................................................................
Fourth
Respondent
Summary:
(Review – arbitrator did not misconstrue case – review
dismissed).
Reasons
for Judgment
LAGRANGE,
J
[1]
On 17 April 2014 the following order was
handed down:
1.1
The application to review and set aside the
arbitration award issued by the second respondent on 3 October 2011
under case number
PSSS 538-11 is dismissed.
1.2
The applicant must pay the respondents’
costs.
[2]
My brief reasons for the judgement are set
out below.
Background
[3]
For the sake of contextualisation, a brief
outline of events giving rise to the dismissal of Constables V Senene
(third respondent)
and N Hombile (fourth respondent) is necessary.
The common cause facts were usefully summarised by the arbitrator as
follows:
“
48.
The evidence which form common facts of this dispute is that the
suspects which are the two boys were apprehended by the security
officer at Camagu Junior Secondary School and were found in
possession of dagga. The matter was referred to the Principal who
then called the members of the SGB and the CPF. The police were also
called and it is two applicants in this dispute who attended
the
matter of the SAPS.
49.
The two boys were handed over to the police officers who born
enforcement officers in order to deal with the matter as police
officers. There were no statements that were taken by the police
officers from the Security, the Principal, members of the SGB
and the
CPF.
50.
The police officers conducted an investigation in the place where the
dagga was allegedly bought but could not find the person
who was
selling the dagga at the house. The boys being the suspects were then
taken to the bus stop and were warned and released
by the police.”
[4]
The police officials claimed that they
exercised their discretion not to arrest the learners on the basis of
a directive issued
by the National Commissioner on 28 April 2005 to
curb the arrest and detention of suspects in petty crimes that can
result in civil
claims against the SAPS. They exercised their
discretion on the basis that the suspects were juveniles, they were
writing exams
at school, and the crime in question was not of a
violent or serious nature.
[5]
The essence of the charges against the
constables were:
5.1
They were in breach of Regulation 20 (f) of
SAPS Regulations in that they prejudiced the administration,
disciplined or efficiency
of the Department, office or institution by
failing to bring the suspects, who had been handed over to them by
the Community Policing
Forum and the School Governing Body as well as
the school watchman, to the police station for the purposes of
charging them.
5.2
They had contravened regulation 20 (i) of
the SAPS Regulations by failing to carry out an instruction without
reasonable cause.
However, they were acquitted on this charge in the
original disciplinary proceedings.
5.3
They had contravened regulation 20 (q) by
contravening the services code of conduct in failing to investigate
criminal conduct endangering
the safety or security of the community
by: failing to bring the two arrest suspects to the police station;
failing to arrest the
third person who sold the dagga to one of the
suspects, and failing to enter the exhibit in the SAP 13 Register
immediately after
it was seized.
The
arbitrator’s findings
[6]
The arbitrator found that there were
different ways of dealing with situations and the circumstances of
each situation would differ
from case to case. He found that the
National Commissioner had given police officers discretion in
effecting the arrest of suspects,
which they had exercised in the
manner described. He found that those reasons were legitimate and
found that their conduct of not
arresting the suspects but warning
them was reasonable and fair in the circumstances.
[7]
He also found that the incident had been
recorded in one of the constable’s pocketbooks and they had
reported it at the police
station. There was also no evidence that
the dagga they had confiscated was not entered in the SAPS 13
Register. Consequently,
he concluded that the two constables had not
contravened the regulations in question.
[8]
Finding that their dismissal had been
substantively unfair and that the employment relationship had not
broken down, he ordered
their reinstatement with effect from 1
November 2011.
Grounds
of review and evaluation
[9]
The principal grounds of review set out in
the applicant’s founding papers were that:
9.1
The
arbitrator’s finding that the third and fourth respondents were
not guilty of failing to execute their duties was one
that no
reasonable arbitrator could have reached. A related ground of review
was that the arbitrator took account of irrelevant
factors while
failing to take account of relevant ones. Essentially, this latter
ground is only of significance to the extent that
it shows why an
arbitrator arrived at a conclusion that was unreasonable.
[1]
9.2
The arbitrator misconstrued the essence of
the matter because his reasoning was based on the fact that the third
and fourth respondents
had a discretion whether or not to arrest the
suspects in question. The applicant’s main contention is that
this was a misdirection
by the arbitrator because:
“
The
crux of the matter was that the respondents failed to execute their
duties in that; they failed to take statements from the
complainant(s) and/or the eyewitnesses and also they failed to open a
police docket against the said learners. In addition, the
respondents
failed to register into the SAP 13, the exhibits which was seized
from the said learners. The exercise of their discretion
whether to
arrest or not the said learners was not an issue at all.”
[10]
The applicant also complained that the
arbitrator had committed a gross irregularity by asking one of the
applicant’s witnesses
to place his signature on a piece of
paper so that it could be compared to the signature on a statement
allegedly signed by him.
Once this had been done the arbitrator ruled
that the statement had been signed by the witness. During the course
of argument,
it became clear that even if this complaint was
justified and that the Commissioner ought not to have intervened on
his own accord
in eliciting evidence of this nature, there was
nothing that turned on the consequence of such evidence being
admitted.
[11]
In
addition, during the course of the argument, it was submitted that
the arbitrator had been unnecessarily robust in dealing with
the
applicant’s representative’s attempt in the arbitration
to test the evidence about the quantity of the dagga seized
and the
constables’ contention that the suspects were writing exams.
However, this was not specifically cited as a ground
of review in the
founding papers and consequently could not be considered by the
Court.
[2]
[12]
In argument and in the answering affidavit
of the respondents, it was pointed out that it could not be
argued that the crux
of the matter concerned, amongst other things,
the failure of the constables to open a case docket because that was
never something
they had been charged with and found guilty of not
doing.
[13]
In answer to the complaint that the
exercise of the constables’ discretion was irrelevant, the
respondents pointed out that
it was because they had exercised their
discretion in accordance with the directive that they did not bring
the suspects to the
police station and by implication that was a
complete defence to that charge and therefore highly relevant. It was
obviously a
significant factor in determining whether or not their
dismissal was fair.
[14]
Furthermore, the respondents pointed out
that it was also never one of the specific charges against the
applicants that they failed
to take statements. In reply, the
applicant contends that the charge was broad enough to comprehend
this specific failure.
[15]
On the question of the evidence in support
of the dagga not being entered into SAPS 13, the only evidence was
that of the chairperson
of the disciplinary enquiry who claimed that
the dagga had only been registered 20 days after the incident. On the
other hand,
there was the evidence of an extract from a pocketbook
entry of Constable Senene, which read:
“
November
2009/11/16
from
them that he refused to give us statement and also told us that they
do not want to put them in custody. We told them that
we will
investigate the source dagga and we took two schoolboys because one
of them confessed that he is out. After we finished
to investigate we
warned Thabiso Ngabeni and Aseza Mboyi and we took that dagga to the
SAP13/357/11/2009 DUTY OFF reported off
duty free from…”
(
sic
)
A
signature appears over the entry at this point, which Senene claimed
was the signature of the person who handed over the dagga
to them,
one ‘Nantsika’. The applicant essentially contended that
it was not reasonable for the arbitrator to rely
on the say-so of the
chairperson of the enquiry who claimed he had inspected the SAPS 13
register. The respondents submitted by
contrast that given the
reference to the register which appears in Senene’s pocketbook
it should have been relatively easy
to contradict his evidence of
when that entry was made by producing a copy of the corresponding
entry in the register itself.
[16]
Whether the charges were wide enough to
embrace the allegations referred to in the review application which
the constables had not
been specifically charged with, namely failing
to take statements or failing to open a docket, the essential issue
is whether the
arbitrator misdirected himself by focussing on the
constables’ defence to their alleged dereliction of their
duties, by accepting
that they had exercised a
bona
fide
discretion not to charge the
suspects. I do not see how this could be construed as amisdirection
if it provided a complete defence
to the charges. It may be that
another arbitrator might have found that the constables exercised
their discretion too leniently,
but that is a matter on which
arbitrators might reasonably differ. Moreover, the constables
did provide a justification for
exercising their discretion in favour
of leniency in accordance with the National Commissioner’s
directive, and that justification
was not far-fetched or absurd in
the circumstances.
[17]
Once it is accepted that the arbitrator did
not misdirect his enquiry, the issue is whether his effective
conclusion that they exercised
their discretion in a
bona
fide
manner is one that no reasonable
arbitrator could have arrived at. The applicant has not provided any
reasons why that should be
so because the focus of its attack was
primarily aimed at the alleged misdirection as such, and not whether
the arbitrator’s
conclusions on how they exercised their
discretion were untenable. Consequently, I do not think the
Commissioner can be faulted
in this regard, or that his finding were
unreasonable in this respect.
[18]
On the question of whether the dagga had
been entered timeously in the register there was conflicting evidence
and the arbitrator
concluded that the employer had failed to
discharge the onus of proof in circumstances when there was no reason
why it could not
have produced an extract from the register to
confirm the presiding officer’s evidence that he had seen the
entry. This was
not an unreasonable conclusion of the arbitrator,
even if another arbitrator could have decided this point in favour of
the employer.
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
24
March 2015
APPEARANCES
For
the Applicant: N Voultsos of the Office of the State Attorney
For
the First Respondent: J R Basson
Instructed
by: Grosskopf Attorneys
[1]
See
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
where
the LAC restated the principle governing the assessment of a failure
to consider material facts:
“
[21]
Where the 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 (see Minister of
Health &
another NO v New Clicks SA (Pty) Ltd & others
2006 (2) SA 311
(CC)). But again, this is considered on the totality of the evidence
not on a fragmented, piecemeal analysis. As soon as it is
done in a
piecemeal fashion, the evaluation of the decision arrived at by the
arbitrator assumes the form of an appeal.
A fragmented analysis
rather than a broad based evaluation of the totality of the evidence
defeats review as a process
. 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.”
(emphasis
added)
[2]
See
Commercial
Workers Union of SA v Tao Ying Metal Industries & Others
(2008) 29
ILJ
2461 (CC)
at 2483:
[67]
Subject to what is stated in the following paragraph, the role of
the reviewing court is limited to deciding issues that
are raised in
the review proceedings. It may not on its own raise issues which
were not raised by the party who seeks to review
an arbitral award.
There is much to be said for the submission by the workers that it
is not for the reviewing court to tell
a litigant what it should
complain about. In particular, the LRA specifies the grounds upon
which arbitral awards may be reviewed.
A party who seeks to review
an arbitral award is bound by the grounds contained in the review
application. A litigant may not
on appeal raise a new ground of
review. To permit a party to do so may very well undermine the
objective of the LRA to have labour
disputes resolved as speedily as
possible.”
See
also, more particularly,
Comtech (Pty) Ltd v Commissioner
Shaun Molony N.O and others
[2007] ZALAC 35
(DA 12/05)
(21 December 2007)
in which the LAC observed:
“
[15]
The difficulty with the appellant’s case in this regard
relates to whether the founding affidavit contains the factual
grounds required by Rule 7A(2)(c) of the Rules of the Labour Court.
Rule 7A(2)(c) of the Rules of the Labour Court requires a
party who
applies for a review, such as the appellant in this matter, to
deliver a notice of motion that must be supported by
“an
affidavit setting out the factual and legal grounds upon which the
applicant relies to have the decision or proceedings
corrected or
set aside.” Rule 7A requires the notice of motion to call
upon, in this case, the commissioner “to show
cause why the
decision or proceeding should not be reviewed and corrected or set
aside.”