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[2015] ZALCPE 68
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Minister of Police v Safety and Security Sectoral Bargaining Council and Others (PR74/13) [2015] ZALCPE 68 (11 December 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: PR 74/13
In
the matter between:
MINISTER
OF
POLICE
Applicant
and
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
First Respondent
MALUSI
MBULI
Second Respondent
MNCEDI
ARBEDNICO
GUDLA
Third Respondent
Heard:
30 April 2015
Delivered:
11 December 2015
Summary:
Defects in an arbitration which have an effect on its outcome render
the award unreasonable.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent (“the arbitrator”)
in which he
found the dismissal of the third respondent substantively unfair but
procedurally fair and ordered the applicant to
reinstate him. The
application is opposed by the third respondent.
[2]
The applicant filed this application more than six weeks after
receiving the arbitration award and applied for condonation.
The
review application was filed 22 days late. The applicant submitted
that the extent of the delay is not substantial. It resulted
from the
procedure which had to be followed to obtain a mandate to bring these
proceedings, instruct counsel and consult with witnesses.
The
applicant submitted that it has good prospects of success. Opposing
the application, the third respondent accused the applicant
of being
malicious towards him. He submitted that the delay is grossly
unreasonable and based on concocted facts. He denied that
the
applicant has good prospects of success. The third respondent’s
allegations of malice and the applicant’s untruthfulness
were
not substantiated. When the explanation for the delay is considered,
22 days is not substantial. The extent of the delay is
not
substantial and its explanation is reasonable. If the allegations the
applicant sought to rely on in proving prospects of success
are
proved, the review application could be successful. The applicant,
therefore, has prospects of success in the review application.
In the
circumstances, the condonation application must, therefore, succeed.
Factual
background
[3]
The third respondent was employed by the applicant until his
dismissal on 18 May 2012 after 21 years of service. On 25 March
2011,
some members of the South African Police Service (SAPS) who were
stationed at the Madeira police station received information
about
the presence of a man dealing in drugs at the Danti taxi rank.
Members of the Dog Unit, including the respondent and Constable
Gwabavu (“Gwabavu”), joined members of the SAPS from the
Madeira police station in conducting a raid at the Danti taxi
rank.
They arrested Mr Mbatha (“Mbatha”) and transported him by
a SAPS van to the holding cells at the Madeira police
station. The
applicant alleged that the third respondent and Gwabavu released
Mbatha from custody unlawfully and were paid R2000.00
bribe in
return. They were charged with contravening Regulation 20 (z) of the
South African Police Service Disciplinary Regulations
(“the
Regulation”) for releasing a suspect from custody and
corruption. They appeared before separate disciplinary
enquires.
Gwabavu pleaded guilty and was fined R500.00. The third respondent
pleaded not guilty and a full disciplinary enquiry
was held. It found
him guilty of the charges which had been preferred against him and
took a decision to dismiss him. Aggrieved
by his dismissal, he
referred an unfair dismissal dispute to the first respondent where
the arbitrator issued an award in which
he found the third
respondent’s dismissal procedurally fair but substantively
unfair. He ordered his reinstatement.
The
award
[4]
The arbitrator found it common cause that the third respondent was
aware of the rule that he was accused of having breached.
It
constituted serious misconduct which was punishable by dismissal. He
noted that he had to determine whether the third respondent
had
breached the rule and whether the applicant effected discipline
consistently. The third respondent raised the defence of
inconsistency
on the grounds that Gwabavu was fined R500.00 while the
third respondent was issued with a sanction of dismissal. The
arbitrator
dismissed the defence on the basis that the circumstances
of the two police officials were not the same.
[5]
Deciding whether the third respondent had made himself guilty of
corruption, the arbitrator found that there was no direct or
real
evidence that was led by the applicant to prove that the third
respondent was paid an amount of R1000.00 or R2000.00 to release
Mbatha from police custody. He also found that the respondent relied
on hearsay evidence which can only be admitted if corroborated
by
real evidence. Dealing with the third respondent’s evidence, he
found that three of his witnesses including Mbatha who
allegedly paid
the bribe, testified that there was no corruption or exchange of
cash. He accepted the evidence of Gwabavu who was
with the third
respondent at all material times, that the third respondent and
Gwabavu did not commit the misconduct which led
to the third
respondent’s dismissal. He concluded that the third respondent
did not commit an act of corruption.
[6]
With regard to the charge of releasing Mbatha from custody, the
arbitrator rejected the applicant’s version that Mbatha
was
left in the third respondent’s custody who accepted a bribe and
released him because no witness was present when Mbatha
was released.
He preferred the third respondent’s version because his three
witnesses gave direct evidence to the effect
that Mbatha was not in
the custody of the third respondent. The third respondent simply gave
a lift to a suspect who had already
been released from the Madeira
police station. He found that the third respondent’s witnesses
gave clear, believable and
coherent evidence that Mbatha was
released, asked for a lift home, the third respondent satisfied
himself that he had been released
and helped a person who had been
wrongfully arrested and took him home according to normal SAPS
practice. He made a finding that
the third respondent did not release
Mbatha from custody. The arbitrator concluded that the third
respondent’s dismissal
was substantively unfair and reinstated.
Grounds
for review
[7]
The applicant submitted that the award stands to be reviewed and set
aside for a number of reasons. It is unreasonable as the
arbitrator
failed to apply his mind to his decision or allowed irrelevant
considerations to influence his decision or failed to
consider the
evidence before him properly or at all. The arbitrator preferred the
third respondent’s version based on the
number of witnesses
called and failed to consider their credibility. The credibility of
Gwabavu and Mbatha had to be considered
as the former had pleaded
guilty to the same misconduct which led to the third respondent’s
dismissal and the latter was
a state witness against the third
respondent in a criminal case where he was going to testify that the
third respondent demanded
and was paid R2000.00 bribe for his
release.
[8]
The third respondent’s opposition is based mainly on the
submission that he did not release Mbatha from custody. The arrest
was not lawful. He submitted that the arbitrator’s decision was
correct and based on the evidence before him. The evidence
included
Gwabavu’s testimony to the effect that she was forced to plead
guilty as she was given an option of pleading guilty
and retaining
her job or dismissal. It also includes Mbatha’s denial of
having paid the bribe. The gist of the third
respondent’s
case is that the arbitrator correctly found in his favour as the
applicant failed to prove its case at the arbitration.
He sought an
order dismissing the review application with costs.
Analysis
[9]
The test for review is whether the decision reached by the arbitrator
is a decision which a reasonable decision-maker could
not reach.
[1]
Some grounds for review are based on the manner which the arbitrator
dealt with evidence. It was argued, on behalf of the applicant,
that
the arbitrator committed a gross irregularity by disregarding
sufficient evidence which proved that the third respondent committed
the acts of misconduct which led to his dismissal. He erred in making
a credibility finding in favour of the third respondent without
giving reasons for the finding. The arbitrator made a credibility
finding in the process of resolving a dispute of fact. In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell and Cie SA and
Others,
[2]
it
was held that in resolving disputes of fact, findings have to be made
on the credibility of factual witnesses, their reliability
and
probabilities. In
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others,
[3]
the court referred with approval to
Stellenbosch
(supra)
and relied on the following
dictum
in
Medscheme
Holdings (Pty) Ltd and Another v Bhamjee
.
[4]
‘
... an
assessment of evidence based solely on demeanour without regard for
wider probabilities constitutes a misdirection. A careful
evaluation
of the evidence against underlying probabilities must be carried out,
otherwise little weight can be attached to the
credibility findings
of the judicial officer.’
[10]
The dispute of fact before the arbitrator in respect of the charge
involving releasing Mbatha from custody was material. Warrant
Officer
Mzenzi (“Mzenzi”), a member of the organised crime
testified that Mbatha informed him that the third respondent
and
Gwabavu demanded and were paid by his boss a bribe of R2000.00 to
secure his release from custody. At the arbitration, Mbatha
denied
having given Mzenzi the information. He further denied that the bribe
was demanded and paid. Gwabavu pleaded guilty to her
participation in
the misconduct which led to the third respondent’s dismissal
yet at the arbitration, she denied that the
misconduct took place and
stated that her plea of guilty was induced by compulsion. The
arbitrator’s reasons for accepting
the third respondent’s
version that he only helped a person who had been wrongfully arrested
and took him home in accordance
with SAPS normal practice were that
the evidence of the third respondent’s witnesses was clear,
believable and coherent.
The approach to be adopted in resolving
disputes of fact as enunciated in,
inter alia
, the authority I
have referred to above requires an arbitrator to apply his or her
mind to the dispute of fact for the purpose
of establishing the true
facts of the matter. The reasons furnished by the arbitrator for
preferring the third respondent’s
version were not disclosed.
He gave no reasons for finding the third respondent’s version
believable. The seriousness of
the dispute of fact and the about turn
made by Gwabavu and Mbatha placed a duty on the arbitrator to
consider their credibility.
He failed to do so. The arbitrator’s
failure to deal with the dispute of fact constituted a gross
irregularity.
[11]
The arbitrator rejected the applicant’s version that the third
respondent demanded and received R2000.00 bribe in exchange
for the
release of Mbatha on the basis that the applicant relied on hearsay
evidence. Substantiating the criticism in the manner
in which the
arbitrator assessed evidence, the applicant submitted that the
arbitrator committed a gross irregularity in rejecting
evidence on
the basis that it was based on hearsay evidence. He disregarded
evidence that Warrant Officer Mvu who would have been
the applicants
material witness died before he could testify at the arbitration.
There was a duty on the arbitrator, therefore,
to assess his hearsay
evidence in terms of section 3 of the Law of Evidence Amendment Act
45 of 1998 and decide whether to admit
it. Rejecting it out of hand
constituted a gross irregularity. A further irregularity that the
arbitrator committed when assessing
the evidence was to admit
material parts of the third respondent’s evidence which were
not put to the applicant’s witnesses
who were able to respond
to them. By way of example, Gwabavu’s evidence that she was
compelled by the applicant to plead
guilty at her disciplinary
enquiry was not put to the applicant’s witness.
[12]
In
Herholdt
v Nedbank Ltd
[5]
and
Gold
Fields Mining SA (Pty) Ltd v CCMA and Others,
[6]
the
courts are in agreement that errors made by commissioners in the
conduct of arbitrations do not of themselves render an award
reviewable. They are of consequence if their effect is to render the
outcome unreasonable. The errors made by the arbitrator in
assessing
the evidence made him reach the unreasonable decision that the third
respondent’s dismissal was substantively unfair.
The
arbitration award, therefore, stands to be reviewed and set aside.
[13]
In the premises, the following order is made:
13.1
Condonation of the late filing of the review application is granted.
13.2
The arbitration award issued by the second respondent under case
number PSSS 419-12/13 and dated 27 May 2013
is reviewed and set
aside.
13.3
The matter is remitted to the first respondent to be arbitrated
de
novo
by an arbitrator other than the second respondent.
_____________
Lallie, J
Judge of the Labour Court
of South Africa
Appearances
For
the Applicant:
Advocate
Rawjee
Instructed
by:
State Attorney
For
the Third Respondent: Mr Mkhongozelo of Mkhongozeli
Attorneys
[1]
In this regard,
see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097 (CC).
[2]
2003 (1) SA 11
(SCA) at para 5.
[3]
(2015) 36
ILJ
2038 (LAC) at para 15.
[4]
2005
(5) SA 339
(SCA) at para 14.
[5]
[2013] 11 BLLR
1074
(SCA) at para 25.
[6]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 17.