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[2015] ZALCD 27
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Ngcobo v South African Police Services and Others (D1020/13) [2015] ZALCD 27 (21 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D1020/13
DATE:
21 MAY 2015
Reportable
In
the matter between:
BONGUMUZI
INNOCENT
NGCOBO
..................................................................................
Applicant
And
SOUTH
AFRICAN POLICE
SERVICES
...................................................................
First
respondent
ARBITRATOR
ALMERIO DEYSEL
N.O
..............................................................
Second
respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
........................................................................................
Third
Respondent
Heard:
16 January 2015
Delivered:
21 May 2015
Summary:
Arbitration award – review of – dismissal –
commissioner – finding employee not guilty of misconduct
–
no evidence of breach of trust relationship – employee entitled
to reinstatement – award reviewed and set aside.
JUDGEMENT
HARKOO,
AJ
Introduction
[1]
This is an application, in terms of
section 158
(1) (g) of the
Labour
Relations Act 66 of 1995
to review, set aside and correct an
arbitration award dated 27 August 2013, issued by the second
respondent, under case number
PSSS 214, under the auspices of the
third respondent; as well as an application for the condonation of
the late filing of the first
respondent’s answering affidavit.
The application for review was opposed by the first respondent who
was the erstwhile employer
of the applicant. The application for the
condonation of the late filing of the first respondent's answering
affidavit is not opposed.
Background
[2]
The applicant was employed by the first respondent as a Constable
since 7 July 2008 and toward the end of his employment he
was working
at the Mainline Train Unit in Durban. He earned a salary of R8461.25
per month.
[3]
The applicant and Mrs Nyawuza were acquaintances. Mrs Nyawuza stayed
at Montclair in Durban. Her husband, Mr Nyawuza was a Magistrate
at
Nongoma Magistrate's Court. Mr Nyawuza normally stayed in Nongoma
during the week and returned to the marital home during weekends.
[4]
One of the other magistrates at the Nongoma Magistrate's Court passed
away and the rumours arose that Mr Nyawuza was responsible
for his
death.
[5]
On the afternoon of 1 June 2011, Mr Nyawuza travelled from Nongoma to
Ulundi by taxi. During the early evening of 1 June 2011,
Mr Nyawuza
was in the vicinity of an Engen service station on the outskirts of
Ulundi. At one stage Mr Nyawuza stood next to the
main road leading
from Ulundi to Nongoma some distance away from a motor vehicle that
was parked alongside the road. After some
time Mr Nyawuza walked to
the motor vehicle and got into the front passenger seat of the motor
vehicle, where he remained for about
two minutes. After two minutes
Mr Nyawuza alighted from the motor vehicle, walked to the garage tuck
shop, where he purchased toilet
paper. He then returned to the motor
vehicle which was still parked alongside the road and again got into
the front passenger seat
of the motor vehicle. After about five to
six minutes the motor-vehicle made a U-turn and drove off in the
direction of Nongoma.
[6]
After driving some distance, the motor vehicle stopped and Mr Nyawuza
alighted from the vehicle. He went to a spot nearby to
relieve
himself. While Mr Nyawuza was relieving himself, he was shot a number
of times from behind and died on the spot.
[7]
The murder of Mr Nyawuza was investigated by Captain Bonginkosi
Mncube of the Richards Bay Organised Crime Unit. Captain Mncube
went
to the scene where the murder took place during the morning of 2 June
2011 where he viewed Mr Nyawuza’s body. Mr Nyawuza’s
cell
phone was in his pocket. At some stage Captain Mncube went to the
Engen Service Station in Ulundi and viewed the video footage
of Mr
Nyawuza’s movements in the vicinity of the service station.
Captain Mncube also obtained the cellphone records reflecting
the
calls that were made between the cellphones of Mrs Nyawuza and Mr
Nyawuza as well as the calls that were made between Mrs Nyawuza’s
cell phone and that of another cellphone which was later discovered
to be that of the applicant.
[8]
On 30 June 2011, Captain Mncube and other members of the Richards Bay
Organised Crime Unit arrested Mrs Nyawuza at her home.
At some stage
later, they saw the applicant driving away from the Durban Central
Police Station; he was followed and it was established
that the
applicant went to Mrs Nyawuza’s house. After the applicant left
Mrs Nyawuza’s house his motor vehicle was
stopped and he was
arrested.
[9]
Captain Mncube took the applicant to the offices of the Cato Manor
Organised Crime Unit where he and other members of the Organised
Crime Unit questioned the applicant.
[10]
During the early hours of 1 July 2011, Captain Mncube drove the
applicant to the Richards Bay Police Station where he was detained
in
the police cells. Later that morning Captain Mncube took the
applicant to the rooms of Dr Kalapdeo, a medical doctor who at
that
stage was the district surgeon. Dr Kalapdeo examined the applicant
and compiled a report. Thereafter Captain Mncube took the
applicant
to the offices of the Richards Bay Organised Crime Unit.
[11]
Captain Mncube arranged with Captain Hlongwa of the Durban Political
Violence Unit to go to the offices of the Richards Bay
Organised
Crime Unit, where Captain Hlongwa spoke to the applicant. At some
point in time the applicant was instructed to undress
to his
underpants so that photographs could be taken of his body. At that
stage the applicant did not have underpants on and the
photographs
were taken while his private parts were covered with a placard.
[12]
At some stage Captain Hlongwa completed certain documents which were
signed by the applicant. These documents reflected that
the applicant
was informed of his rights and he was given certain warnings. In one
of these documents, which appeared to be signed
by the applicant, the
following appeared in the handwriting of Captain Hlongwa which
on the face of it, were the applicant's
responses to the following
questions:
‘
Do
you know why you are brought to me, and if so, why?
Yes,
I will go and point to you the place where I shot and killed Mr
Nyawuza with a fire-arm and also the place where I threw away
the
pistol fire-arm.
If
it is to do a pointing out, how do you know that you may do a
pointing out to me?
It
came after the investigating officer informed me of the allegations
and my rights when I started telling him about the case,
he stopped
me and he asked me if I can point out the places to a person like
yourself if I'm free’.
[13]
Thereafter the applicant, Captain Hlongwa and a photographer drove to
the Engen Service Station in Ulundi, to the scene where
Mr Nyawuza
was murdered as well as to the Tugela River Bridge. Photographs were
taken at these places. The applicant was then taken
to the offices of
the Richards Bay Organised Crime Unit, where the applicant signed a
further document.
[14]
The applicant was then detained at Westville Prison in Durban,
pending a criminal trial.
[15]
On 21 July 2011, while the applicant was in detention, he was
notified of his suspension. The
notice of suspension read,
inter
alia,
as follows:
‘
1.
You are hereby notified that you are deemed to be suspended from duty
in terms of Section 43 of the South African Police
Service Act 68
of 1985 until such time as you are released from custody.
2.
You(r) suspension is without salary, wages, allowance, privileges
or benefits with effect from 2011-06-30.
3.
The reason for your suspension is that you are in custody for: MURDER
NONGOMA CAS 37/06/2011…
4.
Should you be released on bail or otherwise, you are no longer deemed
to be SUSPENDED. The Unit Commander is however, considering
either
continuing with your suspension of temporary transferring you in
terms of Section 43 of the Police Act’
[16]
While the applicant was detained at Westville Prison in Durban he was
notified to attend a disciplinary enquiry in prison.
[17]
According to the first notice the enquiry was scheduled to take place
on 25 January 2012. On that date, the applicant was represented
by a
POPCRU official, Mr Bongokwakhe Shezi. There was a general consensus
that the venue was not suitable for the hearing and the
enquiry was
postponed so that a suitable date could be arranged.
[18]
The second notice was served on the applicant personally in the
prison and was to the effect that the enquiry would be held
during
the period 20 to 23 February 2012. On that day the enquiry was
postponed due to the applicant indicating that he no longer
wished to
be represented by Mr Shezi and in order to enable the applicant to
arrange for a different representative. The enquiry
was postponed to
12 to 15 March 2012.
[19]
Prior to the date of the hearing in March 2012, the applicant
resolved his issues with Mr Shezi and arranged for Mr Shezi to
represent him at the hearing. The disciplinary hearing did not
proceed in March 2012. The applicant was notified by a prison
official
that the enquiry did not proceed because the initiator,
Captain Marthinus Schutte had personal issues. The enquiry was
postponed
without a date of the hearing being arranged with the
applicant or Mr Shezi.
[20]
The enquiry was thereafter scheduled for hearing on 10 to 13 April
2012 at the Westville Prison. The parties were in dispute
as to
whether or not the applicant was notified that the disciplinary
enquiry would proceed on those days. On that day, the applicant
indicated to the chairperson, Lt Colonel Dovhani Clive Malenga that
he was never served with a notice to attend a disciplinary
enquiry on
10 April 2012, that his representative, Mr Shezi, was not aware that
the disciplinary enquiry was set down for hearing
on that particular
date and that he was not prepared to proceed with a disciplinary
enquiry on that day. The enquiry was postponed
to the following day.
[21]
Despite objection by the applicant, a disciplinary enquiry proceeded
on 11 April 2012 without the applicant being represented.
The
applicant remained silent during the proceedings and did not
cross-examine Captain Mnucube and Captain Hlongwa who gave evidence
during the enquiry about the circumstances under which the applicant
allegedly confessed to murdering Mr Nyawuza.
[22]
On 14 April 2012, the applicant was found to have committed the
misconduct referred to in two of the charges that he faced
during the
disciplinary enquiry. These two charges were described as follows:
Charge 1
‘
In
terms of Section 40 of the South African Police Services Act, 1995
(Act 68 of 1995), read with South African Police Disciplinary
Regulations, 2006, you are hereby charged with misconduct, in that
you allegedly contravened Regulations 20 (a) in that on 2011-06-01
on
Route to Magistrate Nyawuza’s home, at Vuna Reserve, Nongoma,
you failed to comply with the legal obligation as stipulated
in Part
one of Standing Orders 31 (General) which means that the Constable:-
(4)
Shall continuously be on the alert to prevent crime and protect the
public. He shall at all-times be observant and never omit
to report
any circumstances that may appear to affect the public welfare or the
good name and trust each of the Force adversely.
(5)
Shall refrain from being overzealous or meddlesome and should,
therefore, not concern himself unnecessarily with trifling matters.
(7)
Shall always act in a dignified, calm and compose(d) manner and, when
addressing members of the public, he shall do so in moderate
language. He must not allow abusive language or threats, however
unreasonable, insulting or provocative, to upset him.
Charge 2
In
terms of Section 40 of the South African Police Services Act, 1995
(Act 68 of 1995), read with South African Police Disciplinary
Regulations, 2006, you are hereby charged with misconduct, in terms
of Regulation 20(q) in that you allegedly contravened the prescribed
Code of Conduct for the Service by failing to:
Uphold
and protect the fundamental rights of Magistrate Nyawuza whereby on
2012-06-01 on Route to Magistrate Nyawuza’s home
, at Vuna
Reserve, Nongoma you lured him into a trap and shot him three times.
You therefore intentionally executed him.
Act
impartially, courteously, honestly, respectfully transparently and in
an accountable manner towards Magistrate Nyawuza whereby
on
2011-06-01 on Route to Magistrate Nyawuza’s home, at Vuns
Reserve, Nongoma you intentionally kill him for your own personal
relationship gain with his legally married wife’.
[23]
On 14 April 2012, Lieutenant-Colonel Malenga in essence dismissed the
applicant for the following reasons:
‘
The
employee failed to report or act against any crime to be committed or
about to be committed against the deceased by planning
a premeditated
murder with the deceased’s wife’
‘
The
employee contravened Code of Conduct for the South African Police
Service by failing to create safe and secure environment for
all the
inhabitants of the Republic’.
‘
The
employee has contravened Regulation 20(q)(in that he) failed to
uphold and protect the fundamental rights of Magistrate Nyawuza
whereby on 2011-06-01 on Route to Magistrate Nyawuza’s home, at
Vuna Reserve, Nongoma he lured him into a trap and shot him
three
times. He therefore intentionally executed him’.
‘
The
employment is a reciprocal relationship and the employee must serve
the employer's interests and act in good faith. The employee
must
refrain from misconduct generally... The trust between the employer
and the employee is irretrievable broken down. The employee
has made
the employment to be intolerable and impossible’.
[24]
On or about 19 April 2012, Mr Shezi, acting on behalf of the
applicant, launched an internal appeal. The appeal was not finalised
within 30 working days and only on 11 September 2012 did the Appeals
Authority make a decision to dismiss the appeal.
[25]
While the outcome of the appeal was pending the applicant and Mrs
Nyawuza appeared in the High Court, on 15 May 2012, on a
charge that
they murdered Mr Nyawuza. The Court heard the evidence of Captain
Mncube, Captain Hlongwa, and Lieutenant-Colonel Duma
as well as the
evidence of Dr Kalapdeo and the photographer who photographed the
alleged pointing out. After a trial within a trial
the Court found
that: ‘the State had not proved beyond a reasonable doubt that
the pointing out by Mr Ngcobo and the confession
by Mrs Nyawuza were
made freely and voluntarily’. At the end of the trial the Court
concluded as follows:
‘
Taking
into account the complete lack of evidence and the inadmissibility of
the pointing out and the confession which the State
attempted to
prove, the state has failed to prove that either Mr Ngcobo or Mrs
Nyawuza were involved in the death of Mr Nuawuza.
In the premises,
YOU ARE BOTH FOUND NOT GUILTY AND DISCHARGED’.
[26]
The applicant referred an unfair dismissal dispute for conciliation
and arbitration to the third respondent. The applicant
challenged
both the procedural and substantial aspects of his dismissal. The
dispute could not be resolved through conciliation
on 21 June 2012
and a certificate to such effect was issued.
The
arbitration hearing
[27]
The arbitration hearing was held on 22 October 2012, 5, 6 and 7
February 2013, 18 and 19 April 2013 and 16 July 2013.
[28]
The applicant challenged the procedural as well as the substantive
aspects of his dismissal.
[29]
He contended that the procedure was unfair because he was not given
advance notice that the enquiry would continue on the 10
and 11 April
2011, that he was for that reason unable to arrange for his
representative, Mr Shezi to be present, that it was unfair
not to
accede to his request for an adjournment and that his right to
representation was infringed. He also contended that the
first
respondent’s failure to finalise the appeal hearing within 30
working days of receipt of the appeal, was unfair. It
was not in
dispute that the appeal was finalised some five months after it was
lodged and nearly 3 months after the referral to
the third
respondent. The applicant furthermore denied any involvement in the
murder of Mr Nyawuza.
[30]
At the arbitration, the commissioner identified the procedural and
substantial issues to be considered.
[31]
As far as the procedural fairness was concerned, he identified the
following:
‘
whether
the applicant was served with the notice to attend the disciplinary
hearing during the period 10 to 13 April 2012?,
whether
the failure to accede to the applicants request for a postponement of
the enquiry on 11 April 2012 to afford him a further
opportunity to
arrange to be represented rendered the procedure unfair?;
whether
the applicant's right to be represented at the disciplinary enquiry
was infringed by the failure to postpone the enquiry
on 11 April
2012?;
whether
the appeal was finalised within the time frames set out in the South
African Police Service Regulations and, if not, whether
that rendered
the procedure unfair?’
[32]
As far as the substantive fairness was concerned, he found that it
was necessary to consider: “whether the respondent
(first
respondent) had a fair reason for dismissing the applicant and in
particular whether the respondent proved on the balance
of
probabilities that the applicant was involved in the murder of Mr
Nyawuza. The underlying issues were:
whether
Mrs Nyawuza made reports to Captain Mncube and Lt Colonel Duma about
the applicant's involvement in the murder including
whether such
reports were freely and voluntarily made and whether the evidence
about it was admissible;
whether
the applicant made reports to Captain Mncube and Captain Hlongwa
about his involvement in the murder including whether such
reports
were freely and voluntarily made and whether evidence about it was
admissible?
whether
there was any other evidence proving on a balance of probabilities
that the applicant was involved in the murder of Mr Nyawuza’.
[33]
The first respondent led the evidence of five witnesses at the
arbitration hearing. These witnesses were:
Captain
Marthinus Schutte, who acted as the respondent’s representative
during the disciplinary enquiry,
Lieutenant-Colonel
Dovhani Clive Malenga, the chairperson of the disciplinary enquiry,
Lieutenant-Colonel
Sabela McCordick Gift Cele of the National Mobile Train Unit in
Durban, who allegedly served a notice to attend
the disciplinary
enquiry on the applicant,
Captain
Mncube, the investigating officer of the criminal case, and
Captain
Hlongwa, to whom the applicant allegedly confessed and allegedly
pointed out the murder scene and the place where the fire-arm
used in
the shooting, was thrown away.
[34]
The applicant presented the evidence of the following witnesses, at
the arbitration:
Mr
Bongokwakhe Henry Shezi, the POPCRU shop steward who represented the
applicant on the day when the disciplinary enquiry was adjourned,
Mrs
Thandeka Nyawuza, the wife of the late Mr Nyawuza, and
Mr
Sikhumbuzo Khanyile, Mrs Nyawuza’s son-in-law who resided at
Empangeni.
[35]
The commissioner took cognizance of the fact that the hearing
scheduled for the 10 to 13 April 2011 was the fourth occasion
that
the disciplinary enquiry was set down for hearing. The applicant was
not responsible for two of the adjournments and was only
responsible
for the adjournment on 20 February 2011. On that occasion, the
disciplinary enquiry was adjourned because the applicant
was
dissatisfied with his representative. It appeared from Mr Shezi’s
evidence that the rift came about because he advised
the applicant to
remain silent during the disciplinary enquiry. In Shezi’s view,
it was prudent to do so because the first
respondent was reliant on
documents that were to be used in the criminal trial. The applicant
did not want to follow the advice
and intended to state his case in
response to the allegations.
[36]
The hearing scheduled for 12 to 15 March 2011 did not take place
because of the family responsibilities of the initiator, Captain
Schutte. The applicant was not informed of the dates of the next
hearing. Mr Shezi required to be notified of the date of the next
hearing, seven days in advance.
[37]
The applicant's case was that he was never notified that the
disciplinary enquiry was set down for hearing on 10 to 13 April
2011.
He only learned of the set down during the morning of 10 April 2011
when he was taken out of the cells and brought to the
venue. He
phoned Mr Shezi but Mr Shezi was not available on such short notice.
The enquiry was adjourned to the 11 April 2011 for
the applicant to
arrange another representative, but that was insufficient time, for
him to make arrangements. He renewed his application
for an
adjournment on 11 April 2011 but it was refused. The hearing
proceeded without the applicant being represented. The applicant
contended that the first respondent’s inability to produce a
copy of the notice of set down and proof that the applicant
acknowledged receipt of it supported his version that no such notice
was ever served on him.
[38]
The respondent's case was that notice of the set down of the
disciplinary enquiry for hearing on 10 to 13 April 2011 was timeously
served on the applicant. Lieutenant-Colonel Cele testified that he
served the notice of set down on the applicant personally at
the
Westville Prison. He stated that when he went to the prison he signed
a visitor’s register, explained the purpose of
his visit to a
prison official and obtained the necessary authority from the head of
the relevant section, Lieutenant-Colonel Chetty.
He maintained that
he handed the notice of set down to the applicant who signed a copy
of it to acknowledge that he received it.
Lieutenant-Colonel Cele
kept the signed copy in his office. However, it was somehow misplaced
and he could not produce it at the
disciplinary enquiry nor could he
produce it at the arbitration hearing.
[39]
The commissioner found that Lieutenant-Colonel Cele’s evidence
was strongly supported by official prison documents that
Captain
Schutte obtained from the Westville prison and handed in at the
disciplinary enquiry. It appeared from Captain Schutte’s
evidence and from the documents itself that Lieutenant-Colonel Cele
signed the visitors register at the prison on 29 March 2011
and that
Lieutenant-Colonel Chetty on the same day signed an authorisation
that he could serve the applicant with a subpoena for
a departmental
hearing.
[40]
The commissioner concluded that the respondent proved on a balance of
probabilities that Lieutenant-Colonel Cele timeously
served a notice
on the applicant notifying him that the disciplinary enquiry was set
down for hearing on 10 to 13 April 2011. He
therefore found that
Lieutenant-Colonel Malenga’s finding, at the disciplinary
enquiry, that the notice of set down was in
fact served on the
applicant, was justified and accordingly determined that the refusal
to postpone the disciplinary enquiry was
not unfair.
[41]
On the other ground, that the first respondent's failure to finalise
the appeal hearing within 30 days of receipt of the appeal,
rendered
the dismissal procedurally unfair, based on Regulation 17 (9) of the
South African Police Service Discipline Regulations,
the commissioner
dismissed the argument on the basis that the regulation did not apply
or relate to the present circumstances.
[42]
On the substantive aspects of the dismissal, the commissioner found
that there was no direct evidence about the circumstances
under which
Mr Nyawuza was killed and the respondent’s case that it was the
applicant who killed him was based on circumstantial
evidence,
including evidence about confessions that Mrs Nyawuza allegedly made
to Captain Mncube and that the applicant allegedly
made to Captain
Mncube and Captain Hlongwa. He therefore found it necessary to
consider whether those confessions were in fact
made and, if so,
whether they were freely and voluntarily made.
[43]
Captain Mncube testified that he became suspicious after viewing the
cellphone records of Mr and Mrs Nyawuza and that of the
applicant.
These records reflected that they were cellphone communications
between Mr and Mrs Nyawuza and also cellphone communications
between
Mrs Nyawuza and the applicant on 31 May 2011 until about 22h00 or
23h00. The records reflected no calls to and from the
applicant’s
cellphone on 1 June 2011 and Captain Mncube inferred that the
applicant’s cellphone was off on that day.
The first person
phoned by the applicant on 2 June 2011 was Mrs Nyawuza. According to
Captain Mncube it was this information that
led him and his
colleagues going to Durban to interview Mrs Nyawuza.
[44]
He further testified that during the course of the questioning, Mrs
Nyawuza was asked about the calls that she made on the
31 May 2011
and she volunteered that some of the calls were made to the
applicant. He also stated that Mrs Nyawuza admitted that
she and the
applicant conspired to kill Mr Nyawuza, that she and the applicant
had a love affair and that it was the applicant
who pushed her into a
plan to assassinate Mr Nyawuza. Mrs Nyawuza also informed him that Mr
Nyawuza found love messages on her
cellphone and threatened to kill
the applicant. She informed him further that Mr Nyawuza was suffering
from a mental illness which
the applicant knew about; the applicant
suggested to her that she should phone Mr Nyawuza and inform him that
she was in contact
with a traditional healer that could assist him
with his problem and that Mr Nyawuza should meet the traditional
healer in Ulundi.
She informed him also that the applicant would pose
as a traditional healer, pickup Mr Nyawuza in Ulundi and then kill
him. He
stated further that after Mrs Nyawuza made the confession,
the applicant was arrested sometime later that night.
[45]
Captain Mncube in his evidence confirmed that the applicant was taken
to the offices of Cato Manor Organised Crime Unit after
his arrest
late during the evening of 30 June 2011. He further testified that
the applicant was questioned about the cellphone
records and he
confirmed, from the outset, the information given to him (Captain
Mncube) by Mrs Nyawuza. He stated further that
the applicant alleged
that Mr Nyawuza had phoned him and threatened to kill him and that,
that threat, motivated him to kill Mr
Nyawuza.
[46]
Captain Mncube further confirmed that the applicant was taken to the
Richards Bay during the early hours of 1 July 2011 and
that the
applicant was taken to the rooms of Dr Kalapdeo. He however, denied
that he was present when Dr Kalapdeo examined the
applicant.
[47]
According to Captain Mncube the applicant and Mrs Nyawuza were
willing to make confessions and the applicant was willing to
point
out where the relevant events occurred. He tried to get a magistrate
to take statements from the applicant and Mrs Nyawuza.
In this regard
he phoned Ms Mkhonza, the senior public prosecutor of Empangeni and
Eshowe, and requested her to arrange for a magistrate
to take down
the statements. Ms Mkhonza could not find a magistrate that was
available and as a result neither the applicant nor
Mrs Nyawuza was
taken to a magistrate. It was arranged that Lieutenant-Colonel Duma
from the Railway Police in Durban would take
a statement from Mrs
Nyawuza and that Captain Hlongwa from the Police Violence Unit in
Durban would take the applicant to point
out the various scenes.
Captain Mncube denied that he influenced the applicant to point out
the scenes or that he conspired with
Captain Hlongwa to fabricate
evidence to the effect that pointings out were done.
[48]
According to Captain Hlongwa, the applicant indicated that he would
do the pointing out freely and voluntarily and specifically
indicated
that he was not assaulted or influenced to do the pointing out. He
confirmed that he asked the applicant to undress so
that photographs
could be taken of certain injury marks. The applicant explained where
the injury marks were sustained and it did
not appear from the
explanation that it was due to an assault. Captain Hlongwa further
confirmed that the applicant did not have
underpants on at the time.
He stated that the applicant gave him an explanation for not wearing
underpants, but could not recall
what the explanation was. According
to him, the applicant directed him and the driver of the vehicle to
the place where he, (“the
applicant”) picked up Mr
Nyawuza, to the place where Mr Nyawuza was shot and to the place
where the firearm was thrown away.
Photographs were taken of the
pointing out. He denied that he instructed the applicant what to
point out. He further denied that
he caused the applicant to sign
blank forms.
[49]
On the applicant's version Captain Mncube alleged that he (“Captain
Mncube”) was a sangoma and that his ancestors
were telling him
that the applicant and Mrs Nyawuza had a love affair and that the
applicant killed Mr Nyawuza for his wife. The
applicant described how
Captain Mncube and his colleagues suffocated him with a tube to the
extent that he fainted and defecated,
soiling his underpants. When he
regained consciousness the applicant pleaded with Captain Mncube and
his colleagues not to kill
him. They said he must agree with them and
do whatever they said he must do. The applicant agreed to do so. The
applicant was thereafter
taken to a toilet where he was allowed to
wash himself in the process he flushed his underpants down the
toilet. After this Captain
Mncube and his colleagues questioned the
applicant about a Run X motor-vehicle. When he denied any knowledge
of a Run X they further
questioned him about the cars that he
normally used. In response the applicant explained that he used three
cars belonging to different
family members including a blue Toyota
Yaris belonging to his sister-in-law. At about 02h00 they went to the
Durban Central Police
Station where they were met with the
applicant’s sister-in-law with whom Captain Mncube had a
discussion. Thereafter they
drove to the Richards Bay where the
applicant was detained in the cells at the Richards Bay Police
Station at about 4h35.
[50]
The applicant further testified that Captain Mncube took him to a
doctor later that morning. According to the applicant Captain
Mncube
was present when the doctor examined him. Because Captain Mncube was
present the applicant did not tell the doctor that
he was assaulted
by Captain Mncube. Thereafter, the applicant was taken to the offices
of the Richards Bay Organised Crime Unit.
Later that day Captain
Hlongwa approached the applicant at the offices of the Richards Bay
Organised Crime Unit and requested the
applicant to sign certain
forms which the applicant refused, saying that he could not sign
something that he had not read. Captain
Hlongwa then left the room
and returned with Captain Mncube. Captain Mncube told the applicant
that if he refused to sign the forms,
whatever happened at Cato Manor
will happen again. The applicant then signed the forms and put his
thumb print where they indicated
he should.
[51]
Captain Hlongwa then asked the applicant to undress. He observed that
the applicant had no underpants on and questioned him
about that. The
applicant explained what happened and Captain Hlongwa then remarked
with a smile that “at Cato Manor everybody
shit themselves”.
Captain Hlongwa saw blood on the applicant's leg and questioned him
about it. The applicant explained that
he was assaulted by Captain
Mncube. A photographer was then called in and he took photographs of
the applicant. The applicant was
told to cover his private parts with
a placard. After that the applicant was taken to various places
including Tugela River Bridge
where Captain Hlongwa instructed him to
point at certain spots and photographs were taken. They then returned
to Richards Bay.
The applicant denied that he voluntarily pointed out
any places to Captain Hlongwa or that he made any admissions to
Captain Hlongwa.
[52]
Mrs Nyawuza testified that Captain Mncube and his colleagues took her
to the Cato Manor police station at about 14h00 and described
in
detail how she was tortured until 21h15 that evening. She was
handcuffed to a chair and suffocated with a plastic bag and a
tube on
many occasions. She was also hit with a fist and sustained a broken
tooth. She was sworn at and they threatened to kill
her if she did
not admit to being involved in the murder of her husband. It was
suggested to her that she had hired a hitman to
kill her husband. At
one stage, Mrs Nyawuza's cellphone rang and it was the applicant who
was phoning her. Captain Mncube put the
phone on loudspeaker and
instructed Mrs Nyawuza to speak to the applicant. After the phone
call Captain Mncube and his colleagues
accused Mrs Nyawuza of having
an affair with the applicant, and required of her to admit that she
and the applicant had murdered
her husband. The torture continued and
they threatened to kill her if she did not admit. Eventually Mrs
Nyawuza stated that she
would make the admission that they had
required of her. They then made her sign a blank piece of paper after
that Captain Mncube
and his colleagues left the Cato Manor police
station taking Mrs Nyawuza with them. She confirmed that the
applicant was arrested
later that night.
[53]
Mr Khanyile testified that on the day Mrs Nyawuza was arrested,
Captain Mncube and his colleagues, without any apparent reason,
took
him from his home in Empangeni and drove with him to a bush like area
near Mtunzini where they questioned him. During the
questioning they
accused him of killing Mr Nyawuza and tried to influence him to admit
that he was involved in the killing, threatening
that he would spend
a long time in jail if he did not do so.
[54]
The commissioner found that the version presented by the first
respondent was improbable in comparison to the version presented
by
the applicant. He further found that it was unlikely that the
applicant and Mrs Nyawuza were lovers and that Mrs Nyawuza’s
evidence that the applicant was a family friend was supported by the
evidence of Mr Khanyile.
[55]
He further found that the evidence of Mrs Nyawuza and Mr Khanyile
about how they were treated supported the applicant’s
version
which was to the effect that he was treated in a similar way as Mrs
Nyawuza was treated. He found that the evidence rendered
it more
probable that it was ‘not out of character for Captain Mncube
to behave in the manner described by Mrs Nyawuza.’
[56]
He also found that it was improbable that the applicant made the
confessions and the pointing out or that it was freely and
voluntarily done. He stated that:
‘
Like
the High Court I am also of the view that it is highly improbable
that Captain Mncube could not find any magistrate between
the
Richards Bay and Durban that was available to take down confessions.’
[57]
He further held that:
‘
There
was no evidence gainsaying that of the applicant and Mrs Nyawuza that
the applicant and Mr Nyawuza were known to each other.
This was a
factor weighing in favour of a finding that it was not the applicant
but someone else who murdered Mr Nyawuza.’
[58]
The Commissioner further stated in his award, at paragraph 55, that:
‘
The
evidence before me as a whole did not support a conclusion that the
applicant's failure to cross-examine Captain Mncube and
Captain
Hlongwa was due to him not having a defence. It is probable that the
applicant's failure to participate in the hearing
was due to an
ill-conceived perception on his part that the procedure was unfair’.
[59]
The Commissioner accordingly held that the first respondent failed to
prove that the most probable inference to be drawn from
the
circumstantial evidence was that the applicant committed the
misconduct that he was dismissed for.
[60]
Insofar as the relief is concerned, the commissioner in his award
stated:
‘
The
failure of the applicant to cross-examine the respondents witnesses
when they testified at the disciplinary enquiry and his
failure to
state a case in response to the allegations levelled against him at
the disciplinary enquiry had consequences. On the
evidence of
Lt-Colonel Malenga the trust relationship had broken down. In my view
this was to a significant degree caused by the
applicant's failure to
participate properly in the disciplinary enquiry. As a result
continued employment was rendered intolerable
and for that reason
reinstatement would not be awarded and compensation will also be
limited’.
[61]
The Commissioner was of the view that both parties were to blame for
the breakdown of the employment relationship and elected
to award the
applicant compensation in an amount equal to half of his loss of
income.
[62]
He accordingly made the following award:
‘
(a)
The respondent, South African Police Service is ordered to compensate
the applicant, Bongumusi Innocent Ngcobo, for unfair dismissal
by
paying him an amount of R76 151-25.
(b)
The amount of R76 151-25 is to be paid to the applicant within 14
days of the respondent being notified of this award’.
[63]
It is this award that the applicant seeks to review.
The
review
[64]
The applicant and the first respondent are in agreement with the
second respondent's finding that the applicant is not guilty
of the
misconduct with which he was charged. The applicant seeks to have the
relief that was granted, reviewed and set aside on
the basis that the
second respondent committed a reviewable irregularity, in that the
award is not one that a reasonable decision-maker
could have made.
The
grounds for the review
[65]
The applicant submitted that the second respondent, having found that
the dismissal was substantially unfair, erred in failing
to order
reinstatement as the first respondent placed no evidence that the
relationship between the parties was so intolerable,
to justify a
movement away from the default position, that is, of reinstatement.
It has been further submitted that the criteria
employed by the
second respondent in calculating the compensation awarded, is
misconceived.
[66]
The first respondent submitted that the second respondent is entitled
to exercise a discretion and render an award of compensation,
that he
had acted as a reasonable decision maker, as Section 193 (2) (b)
allows for a decision not to reinstate, where there is
evidence that
a continued employment relationship would be intolerable.
Analysis
[67]
The primary issue is whether the Commissioner, having found the
applicant not guilty of the misconduct with which he was charged,
was
required to reinstate the applicant, in the light of the fact that
the applicant requested reinstatement.
[68]
Section 193
of the
Labour Relations Act 66 of 1995
, provides as
follows:
‘
(1)
If the Labour Court or an arbitrator appointed in terms of
this
Act
finds that a
dismissal
is unfair, the Court or the
arbitrator may-
(a)
order the employer to reinstate the
employee
from any date not
earlier than the date of
dismissal
;
(b)
order the employer to re-employ the
employee
either in the
work in which the
employee
was employed before the dismissal
or in other reasonably suitable work or any terms and from any date
not earlier than the date
of
dismissal
; or
(c)
order the employer to pay compensation to the
employee
.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the
employee
unless-
(a)
the
employee
does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the
dismissal
are such that a
continued employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the
employee
; or
(d)
the
dismissal
is unfair only because the employer did not
follow a fair procedure’.
[69]
In
Kroukam
v SA Airlink (Pty) Ltd
[1]
,
Zondo JP (as he was then) stated:
‘
None
of the situations set out in sec 193 (2) (a) – (d) exists in
this matter. That being the case this court is enjoined
by sec 193(2)
to grant the appellant an order of reinstatement. In this regard it
is important to emphasise that the language of
sec 193(2) is such
that, if none of the situations set out in paras (a) to (d) exists,
the Labour Court, and, therefore, this Court,
or, an arbitrator, has
no discretion whether or not to grant reinstatement. In the words of
sec 193(2) the Labour Court or the
arbitrator “must require the
employer to reinstate or re-employ the employee” whose
dismissal has been found to be
unfair. That embraces both dismissals
which have been found to be automatically unfair and those which have
been found to be, shall
I say, ordinarily unfair. Ordinarily unfair
dismissal in this context does not include those which have been
found to be unfair
solely because the employer did not follow a fair
procedure because those form under the exception of paragraph (d). It
refers
to those dismissals which are not automatically unfair but
nevertheless lack a fair reason’.
[70]
Clearly, where an arbitrator finds that an employee has been unfairly
dismissed, he or she must order the employer to reinstate
or
re-employ the employee, unless there is sufficient evidence placed
before him or her to satisfy the existence of one or more
circumstances specified in Sec 193(a) to (d), in which case
appropriate compensation may be awarded.
[71]
The question then arises, is whether there was sufficient evidence
placed before the commissioner in arriving at the decision
not to
require the first respondent to reinstate the applicant.
[72]
In
Rustenburg
Platinum Mines Ltd v CCMA and Others
[2]
,
Cameron JA said:
‘
The
code states that it is generally not appropriate to dismiss for a
first offence unless the misconduct is serious and of such
gravity
that it makes a continued employment relationship ‘intolerable’.
‘Intolerable’ means ‘unable
to endure’ (
The
Concise Oxford English Dictionary
). This necessarily imports a
measure of subjective perception and assessment since the capacity to
endure a continued employment
relationship must exist on the part of
the employer. This is not to confer a subjective say-so. Allowing
some leeway into the employer's
primacy of response does not permit
caprice or arbitrariness. A mere assertion on implausible grounds
that a continued relationship
is intolerable will not be sufficient.
The criterion remains whether the dismissal was fair’.
[73]
In
Engen
Petroleum Ltd v CCMA and Others
[3]
, Zondo JP, stated:
‘…
And,
of course, the ipse dixit of the employer that a particular act of
misconduct is of such gravity that it makes a continued
employment
relationship with the employee intolerable is not good enough. In my
view whether or not in a particular case the act
of misconduct by the
employee is of such gravity that it makes a continued employment
relationship intolerable is a question that
must be determined by a
party other than one of the two disputants, for example, the court or
an arbitrator objectively after taking
into account all the facts and
circumstances of the case….’
[74]
In
Amalgamated
Phamaceuticals Ltd v Grobler NO and Others
[4]
,
Pillay J said:
‘
The
mere fact that the applicant does not trust the individual
respondents cannot, without more, be a basis for holding that the
employment relationship has broken. In a constitutional democracy
implicit in the notion of fair labour practice is the obligation
to
balance the respective interests of the parties. To punish the
individual respondents with unemployment, even if this is accompanied
with some compensation, without finding them guilty of any wrongdoing
is grossly unfair. The breach of trust, if there was such,
was not
caused by the individual respondents’.
[75]
Professor Alan Rycroft in his article,
The
Intolerable Relationship
[5]
states:
‘
(b)
If the dismissal is challenged as unfair, it may well be necessary
for the employer to lead evidence in the arbitration as to
intolerability, not necessarily to justify the fairness of the
dismissal but rather to persuade the arbitrator that reinstatement
is
an inappropriate remedy, in terms of s 193(2)(b) of the LRA.
(c)
In assessing whether a continued employment relationship is
intolerable, the same test should be employed for both the employer
and the employee. The test is: Has there been conduct, without
reasonable cause, which is calculated or likely to destroy or
seriously
damage the relationship of confidence and trust between
employer and employee? It is not necessary to show that the
employer/employee
intended any repudiation of the contract: the
courts function is to look at the conduct as a whole and to determine
whether its
effect, judged reasonably, and sensibly, is such that the
employer/employee cannot be expected to put up with it’.
[76]
The second respondent in determining the relief that he awarded,
stated at paragraph 77 of the award:
‘
The
failure of the applicant to cross-examine the (first) respondent’s
witnesses when they testified at the disciplinary enquiry
and his
failure to state a case in response to the allegations levelled
against him at the disciplinary enquiry had consequences.
On the
evidence of Lt Colonel Malenga the trust relationship has broken
down. In my view this was to a significant degree caused
by the
applicant's failure to participate properly in the disciplinary
enquiry. As a result continued employment was rendered intolerable
and for that reason reinstatement would not be awarded and
compensation will also be limited’.
[77]
Lieutenant-Colonel Malenga’s evidence in regard to the trust
relationship was that:
‘
Trust
is one that builds relations between the employer and the employee.
The employee has been given a task to perform, duties
by the employer
and therefore, the employer, there is no way in any manner that he
must perform his duties with diligence, commitment
and must refrain
from doing any misconduct that will damage the relationship. In this
regard, the misconduct that was committed
by the employee damaged the
relationship between the employer and the employee” (Record:
Volume 2, pg 203, lines 7 to 15).
[78]
Clearly, Lieutenant-Colonel Malenga’s evidence regarding the
trust relationship related to the misconduct itself, of
which the
applicant was found not guilty. Nowhere does Lieutenant-Colonel
Malenga state that the trust relationship was broken
down because of
“the applicant's failure to participate properly in the
disciplinary enquiry” as indicated by the second
respondent.
[79]
It must be borne in mind that Lieutenant-Colonel Malenga was the
chairperson of the disciplinary enquiry. Moreover, it was
the second
respondent's view that the applicant's failure to participate in the
disciplinary hearing was probably due to: “an
ill-conceived
perception on his part that the procedure was unfair”.
[80]
In
Edcon
Ltd v Pillemer NO and Others
[6]
,
Mlambo,JA, pointed out at paragraph 21:
‘
It
also cannot be correct as submitted by Mr Redding, that Ismail and
Maponya, who were the internal disciplinary enquiry and appeal
chairpersons respectively, provided the management view regarding the
damaged trust relations. It needs hardly be stated that their
role in
those proceedings was not as witnesses. They were there to ensure
that a fair conclusion was reached by Edcon regarding
Reddy’s
fate…’.
[81]
In my view therefore, firstly, the second respondent's reliance on
the evidence of Lieutenant-Colonel Malenga, who was chairperson
of
the disciplinary enquiry, is misconceived, and secondly, to punish an
employee, who has been found not guilty of the misconduct,
with the
ultimate sanction of dismissal, for his failure to cross-examine the
respondent’s witnesses when they testified
at the disciplinary
enquiry, or to state his case in response to the allegations levelled
against him at the disciplinary enquiry
or his failure to participate
properly in the disciplinary enquiry, is grossly unfair.
[82]
For the reasons set out above, I am satisfied that the second
respondent committed a gross irregularity in the conduct of the
arbitration proceedings as envisaged in Section 145(2)(a)(ii) and
that he exceeded his powers as envisaged in Section 145(2)(iii).
In
the circumstances, the second respondent arrived at a decision that a
reasonable decision maker could not reach and that the
competent
relief is that of reinstatement.
[83]
The next issue is whether the applicant should be reinstated with the
respective effect to the date of his dismissal on 14
April 2012.
[84]
The extent of retrospectivity is an issue that is left to the
discretion of the court or arbitrator within the provisions of
Section 193(3)
(1) of the
Labour Relations Act 66 of 1995
.
[85]
In
Equity
Aviation Services (Pty) Ltd v CCMA and Others
[7]
, Nkabinde J, stated at paragraph 36:
‘
The
ordinary meaning of the word “reinstate” is to put the
employee back in the same job or position he or she occupied
before
the dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes.
It is aimed at
placing an employee in the position he or she would have been but for
the unfair dismissal. It safeguards workers
employment by restoring
the employment contract. Differently put, if employees are reinstated
they resume employment on the same
terms and conditions that
prevailed at the time of the dismissal. As the language of
section
193(1)(a)
indicates, the extent of retrospectivity is dependent upon
the exercise of a discretion by the court or arbitrator. The only
limitation
in this regard is that the reinstatement cannot be fixed
at a dated earlier than the actual date of dismissal. The court or
arbitrator
may thus decide the date from which the reinstatement will
run, but may not order reinstatement, from a date earlier than the
date
of dismissal. The ordinary meaning of the word “reinstate”
means that the reinstatement will not run from a date after
the
arbitration award. Ordinarily then, if a commissioner of the CCMA
ordered the reinstatement of an employee that reinstatement
will
operate from the date of the award of the CCMA, unless the
commissioner decides to render the reinstatement retrospective.
The
fact that the dismissed employee has been without income during the
period since his or her dismissal must, among other things,
be taken
into account in the exercise of the discretion, given that the
employee’s having been without income for that period
was a
direct result of the employer's conduct in dismissing him or her
unfairly’.
[86]
In the light of the above, I am of the view that the applicant is
entitled to reinstatement, retrospectively from the date
of dismissal
on the 14 April 2012 on the same terms and conditions that prevailed
prior to the dismissal.
[87]
I see no reason why costs should not follow the result.
Order
[88]
In the result, the arbitration award issued by the second respondent
under the auspices of the third respondent dated 27 August
2013 under
case reference: PSSS 214-12/13, is reviewed and set aside and
replaced by the following order:
88.1.
The dismissal of the applicant was substantively unfair;
88.2.
The first respondent is required to reinstate the applicant with
retrospective effect to the date of his dismissal on 14 APRIL
2012
with full benefits, less any compensation that the applicant
received, from the first respondent, subsequent to the dismissal.
88.3.
The first respondent is required to pay the applicant's cost.
Harkoo,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Advocate A Naidoo
Instructed
by: R Ramdayal Attorneys
For
the Respondent: Advocate D Pillay
Instructed
by: State Attorney (KwaZulu Natal)
[1]
(2005) 26
ILJ
2153 (LAC) at para 114
[2]
(2006) 27
ILJ
2076 (SCA) at para 45
[3]
(2007) 28
ILJ
1507 (LAC) at para 84
[4]
(2004) 25
ILJ
523 (LC) at para 13
[5]
(2012) 33
ILJ
[5]2271 at p2287
[6]
(2009) 30 ILJ 2653 (SCA) at para 21.
[7]
(2008) 29 ILJ 2507 (CC) at para 36.