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[2015] ZALCD 65
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Pillay v Safety and Security Sectoral Bargaining Council and Others (D774/14) [2015] ZALCD 65 (5 November 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not
Reportable
Case No: D774/14
In
the matter between:
ASOGAN
PILLAY
Applicant
and
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
A. DEYZEL
Second
Respondent
THE
SOUTH AFRICAN POLICE
SERVICE
Third
Respondent
Heard:
26 March 2015
Delivered:
05 November 2015
Summary:
Review application – misconduct leading to dismissal of police
officer – admissibility of evidence of trap
in arbitration
proceedings not the same as in criminal and civil courts.
JUDGMENT
CELE
J
Introduction
[1]
This is an application in terms of section 158 (1) (g) of the Labour
Relations Act
[1]
to review, set aside and substitute an arbitration award dated 14
August 2014, issued in this matter by the Second Respondent as
a
Commissioner of the First Respondent. The Applicant challenged the
award which found that the dismissal of the Applicant by the
Third
Respondent was for a fair reason after a fair procedure was followed.
The Third Respondent opposed the application on the
basis that the
award is reasonable.
Factual
Background
[2]
It was in January 1995 when the Applicant commenced his employment
with the Third
Respondent. He thus became a member of the South
African Police Services, the SAPS. In 2009 he had progressed through
the ranks
to become a Warrant Officer, also then known as an
Inspector. He was stationed at Amanzimtoti Police Station under the
command
of Colonel Carel Grobler, the Station Commander. His duties
were essentially to work at the charge office, though he performed
other functions as well.
[3]
On 21 March 2009 a road accident took place, involving a motor
vehicle driven by a
Mr Izak Smit with a motor cycle of Sergeant Max
Khan, stationed at Umkomaas Police Station. Mr Smit apparently failed
to stop his
motor vehicle after the accident to assess the damage and
injuries suffered, if any. Police investigations conducted led to the
arrest of Mr Smit on that evening. Though Mr Smit was not formally
charged, he was detained at the Amanzimtoti Police cells until
the
early hours of the following day when he was released. An accident
report had been compiled in a prescribed accident form.
The Applicant
was one of the police officers on duty on that night shift.
[4]
On 26 March 2009 Mr Smit arrived at Amanzimtoti Police Station. Due
to the nature
of the report he made he was taken to the Station
Commander Colonel Grobler. Mr Grobler referred the matter to the
Branch Commander,
Colonel Jali with a request that a police detective
be appointed to take a written statement from Mr Smit. The request
was acceded
to. The statement of Mr Smit alleged some acts of
impropriety about his release on 21 March 2009 on the part of the
Applicant.
Colonel Grobler decided that a police trap was to be
conducted against the Applicant as envisaged in terms of section 252A
of the
Criminal Procedure Act.
[2]
The entrapment was scheduled for 28 March 2009 and on that day Mr
Smit took part in it and to that end, he was fitted with video
and
audio recording equipment to capture the event. Five R100 bank notes
were prepared by making copies of each note and the original
notes
were handed to Mr Smit for use in the entrapment.
[5]
A number of police officers were prepared by Colonel Grobler to take
part in the police
operation against the Applicant. They included
Female Detective Inspectors Rothmann and Louise Mulder of Amanzimtoti
Detective
Branch, Detective Inspector Dreyer and other members of the
Organised Crime Unit. A parking area close to a sports field in
Hutchinson
Park, Amanzimtoti was chosen as the vicinity for the
operation. As pre-arranged, Mr Smit arrived at the scene and parked
his motor
vehicle. Other members taking part in the operation took
hidden positions from where they kept observation. Soon thereafter a
marked
police van arrived at the scene driven by Warrant Officer
Ncube with the Applicant as the passenger. The Applicant was in full
police uniform. The police van parked not far from that of Mr Smit.
[6]
The Applicant alighted from the van and approached Mr Smit who
occupied the driver’s
sit and the two spoke to each other. He
then moved to the front passenger window of Mr Smit’s car. He
handled some document
through the front passenger window and Mr Smit
gave him the R500 bank notes he received from police. Warrant
Officer Ncube
moved to carry out an arrest of a certain person.
Thereafter the Applicant went to board the police van but as it was
about to
exit the parking bay it was jammed as the police contingency
in attendance at the scene and Mr Smit approached the police van.
Detective Inspector Dreyer, assisted by other members arrested the
Applicant and took him to Amanzimtoti Police Station where a
written
warning statement was procured from him. The Applicant was charged
with a corruption related offence and he appeared at
the Magistrate’s
Court where he was released on bail. The criminal case was
subsequently withdrawn against him.
[7]
A decision was taken by the Third Respondent to charge the Applicant
with misconduct.
He was alleged to have contravened the provisions
of:
Ø
Regulation
20 (z) - by committing corruption by extorting the sum of R500.00
from Mr Smit in order to destroy the docket that was
opened against
him for reckless or negligent driving;
Ø
Regulation
20 (q) - by contravening a code of conduct of the service;
Ø
Regulation
20 (f) - by prejudicing the administration, discipline or efficiency
of the department or office of the State;
Ø
Regulation
20 (p) – while on duty by conducting himself in an improper,
disgraceful and unacceptable manner in that he committed
corruption.
[8]
The Applicant was arraigned in an internal disciplinary hearing where
the Third Respondent
led the evidence of four witnesses being Colonel
Grobler, Inspectors Rothmann and Dreyer and then Mr Smit. The
Applicant testified
in defence of himself but that notwithstanding,
he was found to have committed the acts of misconduct he was charged
with and was
dismissed from the police force. He filed an internal
appeal and to assist him in that process he requested a transcript of
the
internal disciplinary record. The proceedings were submitted for
transcription but once this had been done the transcript record
was
paid for and removed from the transcribers. It then went missing with
no further trace. He was aggrieved by his dismissal and
he referred
an unfair dismissal dispute for conciliation and later for
arbitration. At arbitration the Applicant was represented
by Advocate
Bastew but after the evidence of two witnesses was led she withdrew
and the Applicant conducted his defence. Mr Grobler,
Ms Rothman and
Ms Smit testified for the Third Respondent and video evidence was
produced. The Applicant testified in his defence.
Commissioner R
Lyster of the First Respondent found that there was no basis to find
the dismissal of the Applicant to be unfair
and he dismissed the
claim of the Applicant. The Applicant applied for the review of the
first arbitration award. A complete record
of the arbitration
proceedings could not be obtained. By agreement of the parties the
first arbitration award was reviewed, set
aside and the matter was
remitted for a
de
novo
arbitration hearing. The Second Respondent was appointed to arbitrate
the dispute. Two witnesses were called by the Third Respondent,
being
Messrs Grobler and Dreyer. Neither Mr Smit nor Ms Rothman testified
due to no longer being available. The Applicant was the
only witness
for his case. The Second Respondent issued a second arbitration award
in which he found that the Third Respondent
had dismissed the
Applicant for a fair reason and after following a fair procedure. The
Applicant initiated the present application
which is the second
review application in this matter.
Evidence
Third
Respondent’s version
[9]
To the extent that the evidence of the Third Respondent differed from
that of the
Applicant, the version presented was that Mr Smit was
presented to Mr Grobler whereupon Mr Smit reported that the Applicant
had
made him pay R500 for his release from custody and that the
Applicant was offering to make a police docket disappear for five
hundred
rand for the matter for which Mr Smit had been arrested. A
further report was that another police officer Sergeant Max Khan of
Umkomaas was telephoning Mr Smit, extorting him money to withdraw the
reckless and negligent charge. The Branch Commander Mr Jali
arranged
for Ms Rothman to take a written statement from Mr Smit and such a
statement was taken. Mr Grobler then sought authority
to conduct a
police action in which Mr Smit would offer R500 to the Applicant to
give a chance if the Applicant would destroy the
docket. Advocate
Gert Nel of the office of the Director of Public Prosecutions in Kwa
Zulu Natal granted verbal authority. So telephone
calls were
exchanged between Mr Grobler and Ms Rothman to arrange the police
action. In the morning of 28 March 2009 Mr Grobler
addressed SAPS
members involved in the undercover operation and Mr Dreyer then took
charge. Mr Smit was fitted with audio and video
recordings and he was
given R500 bank notes after copies of the notes had been made and
kept. The police undercover operation went
as planned and the
Applicant peached up at the scene pursuant to a telephone call Ms
Rothman asked Mr Smit to make to let the Applicant
know that Mr Smit
was waiting for him at the pre-agreed venue.
[10]
The Applicant went to Mr Smit’s car carrying what appeared to
be a police docket. Mr Dreyer
saw the Applicant leaning into the
opened front passenger window of Mr Smit’s car. Mr Smit then
sent a pre-arranged signal
to the hiding police officers. All began
to move to the scene. The Applicant got into the police van he came
with. Ms Rothman told
Mr Smit to jam the police van. R500 bank notes
given to Mr Smit were found in possession of the Applicant. The
Applicant was told
of what was going on. A torn police docket was
retrieved from the cabby hole of the police van and was given to Mr
Dreyer. The
Applicant was arrested and taken to the police station
where a statement was taken from him. The audio and video equipment
was
retrieved and handed to the Technical Support Services for
processing. Mr Grobler decided not to take any action against
Sergeant
Khan as Khan did not belong to Amanzimtoti Police Station.
Applicant’s
Version
[11]
The Applicant worked during the night shift when Mr Smit was involved
in an accident and he heard
of the accident report. At some stage he
drove pass the scene of the accident but found that it had been
cleared. He returned to
the station to find his colleague Sergeant
Mark Martins having difficulty with a suspect who was extremely rowdy
and Constable
Kotzer was assisting Sergeant Martins. The Applicant
told the suspect to calm down and he told the suspect that he was
likely to
get R500 bail if he was charged for a traffic or drunken
driving offence. Sergeant Martins asked for a procedure for the
compilation
of an accident report. The Applicant explained the
procedure and an accident report was compiled. The troublesome
suspect turned
out to be Mr Smit and he was then lodged at
Amanzimtoti Police cell by Sergeant Martins. It was not true that the
Applicant allowed
Mr Smit to make a telephone call at the station to
his wife as the Applicant did not have a telephone pine code. At some
stage
the Applicant saw Mr Smit wondering around in the courtyard at
the station. He found it difficult to say Mr Smit was released by
any
officer as Mr Smit had not been charged. Mrs Smit and her neighbour
Ms Nikkie Jacobs arrived at the station and were randomly
attended to
by a number of police officers present. The Applicant neither
released Mr Smit from the cells as alleged nor demanded
any money
from him. He never told Mr Smit that Mr Smit was in big trouble. Nor
did he exchange telephone numbers with Mr Smit.
The Applicant had no
knowledge of who made six calls to Mr Smit from the office telephone
on 22 March 2009 between 04h28 and 05h50.
The Applicant did not
telephone Mr Smit at around 18h00 on 22 March 2009 as alleged.
[12]
Ms Rothman approached the Applicant with a request for assistance in
arresting a certain fugitive
from justice. He agreed to assist if he
would be available. Ms Rothman made a follow up and explained that
she needed to conduct
a trap for this fugitive and that the
assistance of the Applicant was necessary. The fugitive turned out to
be Mr Smit. On Saturday
28 March 2009 Ms Rothman telephoned the
Applicant confirming that such a trap would be conducted on that day.
The Applicant was
working at the community service centre. He
told Mr Ncube with whom he worked at the station about the request.
He then decided
to make an occurrence book (OB) entry of assisting in
the trap. The member in charge of the centre, Warrant Officer
Ntombela, was
still busy with the book and undertook to make that
entry later.
[13]
The Applicant left the station with Mr Ncube driving the police van
to a venue of the trap as
told to him by Ms Rothman. He took part in
the trap as described by the Third Respondent except that
it
was part of an entrapment exercise designed to obtain evidence that
Mr Smit attempted to bribe him.
Just
after he received the R500 bank notes from Mr Smit a certain black
male was on the run. The Applicant went after him, assisting
Mr Ncube
to arrest this person. Had this incident not taken place the
Applicant would have asked Mr Smit what the payment was for.
The
Applicant denied having carried a docket for a traffic violas
ion
by Mr Smit, saying he merely carried a document. After his arrest the
police intimidated him. They were bragging about the arrest,
saying
they were fixing him up for the stance he had taken against the
members of the
Organised
Crime Unit
involved
in two other criminal matters. Mr Dreyer in particular said
that
the trap was for the Applicant and not Mr Smit and that it was the
last time the Applicant ever made allegations against the
Organised
Crime Unit. The
Applicant
said he had agreed to testify against those members in the criminal
court for their unlawful behaviour against the accused
charged in
that case. The trap was therefore a ret
aliatory
act of the organised Crime Unit. Upon his arrest he made a written
statement which disappeared. The statement used in this
matter was a
second one from him. He produced it under threat by the police.
Chief
findings of the Second Respondent.
[14]
The first issue in respect of which a finding was made pertained to
the nature of the enquiry
the arbitration related to. The finding
made was that:
“
76.
In determining whether the Applicant`s dismissal was substantively
unfair or not, it is necessary
to decide whether the Applicant
committed the misconduct that he was dismissed for. It is
particularly necessary to consider whether
the Applicant corruptly
accepted an amount of R500.00 from Mr Smit i.e. in exchange for
tearing up a police docket or whether he
accepted it as part of an
entrapment exercise designed to obtain evidence that Mr Smit
attempted to bribe him.
77.
As is apparent from the summary of the evidence the parties accused
each other of fabricating
evidence
.”
[15] In
relation to substantive fairness the Second Respondent made the
following findings:
“
78.
The case that the Applicant sought to make out was that Amanzimtoti
detectives and members of
the Organised Crime Unit arranged for an
entrapment exercise to be done, so as to obtain evidence implicating
the Applicant in
corruption charge. Their motive for doing so, so the
Applicant`s case went, was to seek revenge for the Applicant making
statements
that implicated members of the Organised Crime Unit in
committing acts of violence when they arrested suspects at a night
club
or to dissuade him from giving evidence to such effect or to
discredit him in case he would give evidence to such effect. On the
evidence as a whole it was highly improbable that was what happened.
The reasons for this finding are the following:
·
Firstly;
the statement that the Applicant referred to was made to suspects and
their attorney and there was no indication that the
statement came to
the knowledge of Amanzimtoti detectives and members of the Organised
Crime Unit.
·
Secondly,
the idea that a trap should be set for the Applicant did not emanate
from members of the Organised Crime Unit. Mr Smit
made a report to
Senior Superintendent Grobler and he in turn requested the detective
branch commander to appoint a detective to
take a statement from Mr
Smit. It was either Senior Superintendent Grobler or Inspector
Rothmann who contacted the Organised Crime
Unit and requested their
assistance.
·
Thirdly;
there was no reason why Inspectors Rothman and Mulder would conspire
with anybody to misrepresent to the Applicant that
they needed his
(the Applicant`s) assistance to trap Mr Smit when they in fact
intended to trap him (the Applicant).
·
Fourthly;
the most probable inference to be drawn from the circumstances was
that it was a report made by Mr Smit to Inspector Rothman
that led to
a trap being set for the Applicant.
79.
The probabilities are overwhelming that it was the Applicant who
fabricated his version.
On the evidence of Inspector Dreyer at the
time that the Applicant was arrested in Hutchison Park he (the
Applicant) made no mention
of him believing that he was participating
in an exercise arranged by Inspectors Rothmann and Mulder to trap Mr
Smit. Inspector
Dreyer`s evidence in this regard was strongly
supported by the fact that the Applicant made no mention of that in
his warning statement.
It is significant that the Applicant learned
well before the arbitration hearing commenced that the respondent
would not call Mr
Smit, Inspector Rothmann or Inspector Mulder as
witnesses. On the probabilities the Applicant changed his version
because of that,
believing that such witnesses as the respondent was
going to call would not be able to gainsay his latest version.
80.
It is so that the Applicant gave evidence that the written statement
that the respondent
relied on was made under duress and that it was
not freely and voluntarily made. The duress that the Applicant
referred to was
a threat.
81.
I find that the most probable inference to be drawn from all the
circumstances was that
the Applicant made the written statement
referred to in preceding paragraph freely and voluntarily. I
accordingly find that the
statement was admissible evidence.
82.
As mentioned above it was not in dispute that the Applicant tore up
something while leaning
into Mr Smit’s car. In the written
statement the Applicant admitted that it was a police docket that was
torn up. The reliability
of this admission was strengthened by the
evidence of Inspector Dreyer to the effect that a torn up police
docket was retrieved
at the scene where the Applicant was arrested by
one of the inspectors who was with him (Inspector Dreyer). The
evidence that the
Applicant gave at the arbitration i.e. that he tore
up stationery contradicted his written statement and was so
improbable that
it cannot be accepted. On the evidence given by the
Applicant during the arbitration he was informed that Mr Smit wanted
to buy
a police docket and he went to Hutchison Park to trap the
Applicant. Even on that evidence one would have expected the
Applicant
to take a police docket along and to hand it to Mr Smit so
that Inspectors Rothmann and Mulder could find it on him (Mr Smit).
The fact that the Applicant did not hand the police docket to Mr Smit
rendered it unlikely that the Applicant was participating
in an
exercise designed to trap Mr Smit. On the Applicant`s evidence at the
arbitration Mr Smit said the Applicant must tear up
a docket for five
hundred rand. The Applicant the (sic) tore up some stationery but Mr
Smit nevertheless paid the Applicant five
hundred rand. How the
Applicant hoped to have trapped Mr Smit if he was tearing up
stationery was not explained.
83.
What the torn up docket looked like could be seen from digital
photographs shown during
the arbitration which appeared to be taken
at the time of the Applicant`s arrest as well as from a photocopy of
the docket cover
made after it was pasted together. It appeared from
the docket cover that it related to an incident involving alleged
reckless
and negligent driving that occurred on 21 March 2009 on Main
Road, Warner Beach, and the time and place when and where the
collision
that Mr Smit was involved in, took place. The Applicant had
written on the docket that it was not to be registered. These
circumstances
further rendered it more probable than not that the
Applicant had torn up a police docket whilst talking to Mr Smit.
84.
I have considered all the other issues referred to in the Applicant`s
evidence and the closing
argument filed on his behalf. I briefly deal
with some of those issues in paragraphs 85 to 87 below.
85.
The record of the phone calls made to
and from Mr Smit`s cell phone did not assist either party`s
case.
86.
No weight could be attached to the Applicant`s evidence about the
entry that he allegedly
made in the occurrence book because the
Applicant`s credibility as a witness was seriously tarnished for the
reasons given above.
The Applicant probably gave such evidence
knowing that the respondent would not be able to rebut what he was
saying, because the
relevant occurrence book had gone missing.
87.
Video footage of the incident in Hutchison Park was shown during the
evidence of Senior
Superintendent Grobler. At the time it was
indicated that the respondent would rely on hearsay evidence and that
it would lay a
basis for that. The circumstances changed during the
evidence of Senior Superintendent Grobler as he testified that Mr
Dreyer was
staying in Durban and that it was possible to call Mr
Dreyer as a witness. Parts of the evidence of Mr Dreyer regarding
what happened
in Hutchison Park was not disputed and that was the
probable reason for the respondent not laying a proper foundation for
the video
footage to be allowed. Without making a definite finding
concerning the admissibility of the video evidence I have decided in
favour
of the Applicant not to take the video evidence into account.
88.
It was common cause that the Applicant received an amount of R500-00
from Mr Smit. The evidence
proved on an overwhelming balance of
probabilities that the Applicant more or less at the same time tore
up a police docket relating
to the driving of Mr Smit. In addition
the evidence proved on an overwhelming balance of probabilities that
the Applicant gave
a false explanation for what occurred. The most
probable inference to be drawn from these circumstances it that the
Applicant tore
up the police docket in return for receiving an amount
of R500.00 from Mr Smit i.e. that the Applicant committed the
misconduct
that he was dismissed for
.”
[16]
On sanction the finding made was that:
“
89.
The misconduct that the Applicant committed was so serious that the
sanction of dismissal was not unfair. It was
submitted on behalf of
the Applicant that the sanction was unfair because the respondent did
not prove that the trust relationship
had broken down. In my view
however it goes without saying that a police officer who accepted a
bribe should not be allowed to
continue holding the position of
police officer. Public interest requires that such police officer be
removed from the respondent`s
service. In the Applicant`s case the
position was worse because he showed no remorse and fabricated an
elaborate concocted story
falsely accusing other police officers of
conspiring to frame him and of fabricating evidence implication him
in the commission
of bribery and corrupt acts.”
[17]
Finally,
for procedural fairness the second respondent said that:
“
90.
It was submitted on behalf of the Applicant that the respondent did
not follow a fair procedure
in that it failed to provide the
Applicant with a transcript of the record of the disciplinary enquiry
so that he could use it
for internal appeal. No evidence was however
led regarding the extent to which the Applicant was prejudiced by the
failure to provide
him with such transcript. There was no indication
that the Applicant could not have been expected to argue the internal
appeal
without a transcript of the record of the disciplinary
enquiry.
91.
In all the circumstances I find that the respondent dismissed the
Applicant for a fair reason
and after following a fair procedure.
”
Review grounds
[18]
The
Applicant contended that the Second Respondent as Arbitrator, in
conflict with the behests of the Act, misdirected himself,
failed to
apply his mind, prevented the Applicant from tendering evidence,
concealed facts and evidence and thus committed gross
irregularities
and exceeded his powers by acting unreasonably or unjustifiably. The
Applicant said that
the arbitrator did not identify material aspects of the dispute. He
said that t
he Employer
alleged that the entrapment was conducted on the basis that the
Applicant had unlawfully arrested and detained Mr Smit
and thereafter
made threats of extortion against him. He said that this issue
constituted a material fact of the dispute which
the Commissioner
failed to determine properly. In support of this submission he made
extensive references to various factual disputes
in this matter such
as:
Ø
The
identity of the police officers who arrested Mr Smit;
Ø
The
allegations of extortion perpetrated by Mr Max Khan;
Ø
Authority
of the police action or trap;
Ø
Admissibility
of evidence regarding the trap;
Ø
The
status of Mr Smit;
Ø
Evidence
about the Organised Crime Unit;
Ø
The
Commissioner’s bias in accommodating the Third Respondent to
lead evidence of Mr Dreyer whose whereabouts were unknown;
Ø
Evidence
of telephones made between Mr Smit and the police station;
Ø
The
written statement of Mr Ntombela and
Ø
Protected
disclosure made by the Applicant.
[19]
A number of submissions made by the Applicant in support of the
review application are process-related.
As the Applicant appeared in
person he probably did not know that the process-related review test
is no longer part of labour law
[3]
.
[20]
In opposing the review application the Third Respondent made various
submissions including that
the
Second Respondent considered all the issues that he needed to decide
upon, more specifically that of whether or not the Applicant’s
dismissal was substantively unfair. The issue relating to any alleged
procedure of unfairness is clearly traversed in the award.
The
submission was that the Second Respondent did in fact apply his mind
to the Applicant’s allegation that he was not given
the right
to Appeal. The Second Respondent was said to have correctly accepted
the evidence of the Applicant, which demonstrated
that he was
afforded the right to appeal, and that even if the Applicant was not
provided with a transcript, he failed to prove
any prejudice in the
absence of such transcripts. It was submitted that the Applicant was
fully aware of the alleged grounds of
his appeal, and there was no
impediment to the Applicant proceeding with his appeal in the absence
of a transcript.
[21]
It was submitted that the Second Respondent had properly analysed and
dealt with the Applicant’s
version on the substantive issue. In
doing so the Second Respondent properly applied his mind to the
substantial merits of the
dispute. The submission was that the Second
Respondent correctly found that there was no reason why Ms Rothman
and Ms Mulder would
conspire with anybody and misrepresent to the
Applicant that they needed his assistance to trap Mr Smit when they
in fact intended
to trap the Applicant. It was said that the Second
Respondent had concluded reasonably that initiation of the trap being
set for
the Applicant did not emanate from members of the Organised
Crime Unit, but rather at the instance of Grobler. It was submitted
that the Second Respondent correctly considered the employer’s
right to dismiss the Applicant for the serious charge of corruption
which resulted in an irretrievable breakdown of the trust
relationship between the Applicant and the Third Respondent.
Evaluation.
[22]
For review purposes it is now trite that 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. The review court is not required to take into account
every factor individually,
consider how the arbitrator treated and
dealt with each of those factors and then determine whether a failure
by the arbitrator
to deal with one or some of the factors amounts to
process-related irregularity sufficient to set aside the award. This
piecemeal
approach of dealing with the arbitrator’s award is
improper as the review court must necessarily consider the totality
of
the evidence and then decide whether the decision made by the
arbitrator is one that a reasonable decision-maker could make.
[4]
[23]
The Second Respondent was confronted by two versions that were
mutually exclusive to each other and
therefore could not co-exist.
The Applicant correctly pointed out that the version of the Third
Respondent in the second arbitration
was limited to the evidence of
its only two witnesses, Messrs Grobler and Dreyer. The essential
witnesses Ms Rothman and Mr Smit
did not testify. When properly seen,
the version of the Applicant is that Mr Grobler was part of a process
that was initiated by
Ms Rothman without him knowing of the truth.
His version suggests that Ms Rothman and Mr Khan had a series of
telephone calls made
to Mr Smit between 21 and 28 March 2009. Ms
Rothman had then set up the reporting of the Applicant when Mr Smit
came to the police
station to report the extortion. Mr Grobler
accepted the
bona
fides
of Mr Smit and initiated the police action. Mr Grobler was then an
innocent participant to an action instigated by Ms Rothman and
therefore the truth of the matter would not depend on his testimony
but on that of Ms Rothman and Mr Smit as essential witnesses
who
never testified. In the absence of the essential witnesses the
version of the Third Respondent is dependent on circumstantial
evidence. Mr Dreyer was implicated for what he is alleged to have
said to the Applicant after the Applicant was arrested, saying
that
the trap was for the Applicant and not Mr Smit and that it was the
last time the Applicant ever made allegations against the
Organised
Crime Unit.
[24]
Before the probabilities are examined there are issues that need to
be resolved. The Applicant
has made numerous references to documents
that went missing in this matter. None of the parties gave evidence
on who was responsible
for the loss of the transcript of the internal
disciplinary hearing, the occurrence book, the first statement of the
Applicant
after his arrest and the original docket used in the trap,
if one was there. All were lost while in custody of the police
members
at Amanzimtoti. It is a strange phenomenon of this case that
these documents went missing. The circumstances of their loss are so
vague that it is virtually difficult to make a conclusive finding in
relation to such loss. No clear finding can be made on who
stood to
gain for the loss.
[25]
The Applicant raised an issue about the
identity
of the police officers who arrested Mr Smit. It was never said that
the officer who extorted R500 for the release of Mr
Smit was the one
who had arrested him in the first place. For purposes of determining
the guilt of the Applicant the identities
of the arresting officers
was therefore never relevant. The probabilities of this matter
indicate though that it was not the Applicant
who arrested Mr Smit.
The Applicant has also made reference to the allegations of extortion
perpetrated by Mr Max Khan, who was
apparently the owner of the
motor-cycle involved in an accident with Mr Smit. Mr Khan might have
been making monetary demands to
Mr Smit for the damages occasioned in
the accident or a demand for money so as not to press criminal
charges when his motor cycle
was damaged. Whether this was such a
demand or the alleged extortion, it is a separate issue from the
charges faced by the Applicant.
[26]
The Applicant made reference to authority of the police action or
trap and the admissibility
of evidence regarding the trap. The two
issues relate to the admissibility of evidence pertaining to the
trap. Section 252A of
the Criminal Procedure Act
[5]
is clear. It regulates the admissibility of such evidence in civil
and criminal courts. The Arbitration hearing is not one such
court.
Section 138 of the Act
[6]
then gives the Commissioner authority to conduct arbitration
proceedings in a manner that the Commissioner considers appropriate
in order to determine the dispute fairly and quickly but with the
minimum of the legal formalities. The attack of the Applicant
on this
issue suggests that this evidence should not have been admitted. Yet
he is the one who testify about the circumstances
under which he took
part in a trap, making it imperative that such trap evidence should
be admitted and considered in the resolution
of the issues. His
attack of the award on this aspect is devoid of any merits.
[27]
The
status of Mr Smit is yet another issue raised by the Applicant. Even
if it were conceded that Mr Smit was of dubious character
it did not
mean he had to be extorted R500 for his release. Nor did it mean that
he could lawfully transact with money for the
disappearance of a
police docket in a matter that police were investigating. Those
familiar with criminal cases know that persons
of dubious characters
such as police informers are often used in police undercover
operations. This issue has no merits for review
purposes.
[28]
The next issue raised relates to evidence about the Organised Crime
Unit. The Applicant said
that it had become public knowledge that he
was to testify in two criminal matters against members of the
Organised Crime Unit.
He never elaborated how this had become public
knowledge. His evidence was that he reported the violent treatment of
the accused
by members of the Organised Crime Unit to the Prosecutors
handling those matters. This was an essential part of his case in
respect
of which he should have given details as it was to explain
the motive for the retaliatory trap against him. The accused were
charged
for drug related offences while the Applicant said that he
was to testify about how they were treated. His evidence would
therefore
not concern the criminal charge but was about how the
suspects were treated once arrested. It remained unclear why the
members
of the Organised Crime Unit would then be so vindictive
against him. It remained unclear again why his colleagues as members
of
the Detective Branch had an exe to grind with him. He led no
evidence of why these members had a vendetta against him so as to
gang up with the Organised Crime Unit against him. The lack of
details on this issue has a devastating effect on the version
presented
by the Applicant. While he testified about the theft of
property of the detainees at the police station, he never suggested
that
it created any ill-feelings between him and his colleagues.
[29]
The Commissioner’s bias in accommodating the Third Respondent
to lead evidence of Mr Dreyer
whose whereabouts were unknown is yet
another issue raised by the Applicant. It is the duty of a
Commissioner to assess if any
further witnesses are likely to be
called by any of the parties so as to monitor time frames and
progress in the matter. Also,
where hearsay evidence is sought to be
led, it may be provisionally admitted pending the testimony of a
person on whose truth and
credibility such evidence depends.
Accommodating a party for such evidence is permissible. There are
accordingly, no merits to
this submission.
[30]
The next issue is about the evidence of telephones made between Mr
Smit and the police station.
There are merits in the evidence of the
Applicant that Mr Smit was repeatedly telephoned by an officer or
officers at Amanzimtoti
Police Station days before the trap was
conducted. The Third Respondent’s version failed to explain why
such calls were made
and by whom. The evidence on this aspect had to
come from Ms Rothman and Mr Smit who were no longer available to
testify. The Applicant
suggests that it was all part of a bigger plan
to falsely incriminate him. Added to this aspect is the evidence of
the Applicant
that his cellular telephones were confiscated by the
police on his arrest and were returned with a history of telephone
calls made
and received wiped out. Again the Third Respondent was
unable to meet this version with any explanation. This aspect has to
be
viewed with the probabilities of this matter.
[31]
The Applicant made reference to the written statement of Mr Ntombela,
saying that t
he
Commissioner ignored his evidence that the statement supported his
claim that he had a lawful purpose for being at the scene
of the
entrapment. The statement was in support of the claim that Ms Rothman
had contacted the Applicant prior the entrapment and
lured him to the
scene under the guise of trapping Mr Smit. The Applicant said that he
made an occurrence book entry that Mr Ncube
and himself went to
assist Ms Rothman. The occurrence book went missing from the
Employers possession. It is unfortunate that an
important statement
such as this one was only made about five years after the event and
only upon the intervention of the Independent
Police Directorate. The
statement was very relevant to the issues in point. However, due to
time lapse where memories are prune
to fade, it carried less
evidential weight. The cue lay in Mr Ntombela being called to give
viva
voce
evidence, which did not happen.
[32]
The Applicant said that his arrest was pre-empting the testimony he
was to give in the drug matter
against the members of the Organised
Crime Unit and therefore that he was making a protected disclosure,
in terms of the Protected
Disclosure Act
[7]
.
This issue never served before the Commissioner. The review
application is limited to issues that were brought to the hearing
before the Commissioner. Had the Applicant raised this issue, the
Commissioner would be devoid of the jurisdiction to determine
the
dispute. In any event the facts of this matter suggest that no
protected disclosure was made in this matter. He was merely
to
testify in a law court as a witness.
[33]
The probabilities of the evidence in this matter must now be
examined. According to the Applicant
a trap had to be prior
authorised. There is no evidence by him to say that such
authorisation had been obtained. Members taking
part in a trap meet
before the trap and rehearse the process, identify and agree on the
tools to be used so that such tool are
not contaminated by what else
members are in possession of. He said nothing of the sort. He had not
seen Ms Rothman at the scene
of the trap, nor had he arranged with
her any signs that would pass through, telling her that the mission
had been accomplished,
after which she would move in to carry out the
arrest. He had not discussed with her how this vital evidence of the
trap would
be captured. The scene of a trap is normally a secret
place and yet the Applicant went to the scene in open view with
another police
member. Mr Smit would have been concerned about Mr
Ncube’s presence at a time when cellular telephones carried
daily could
record this transaction very easily. Simply put, the trap
he says he took part in was worse than the trap he criticises the
Third
Respondent for. In his own description of what a lawful trap
should be constituted of, he admittedly was taking part in a shoddy
exercise.
[34]
According to the Applicant he did not have a docket with him when he
approached Mr Smit. If he
believed he was taking part in a trap one
has to wonder what it is that would be found to be incriminating with
Mr Smit after the
Applicant had taken his money. So he came to take
money in exchange with some document of no relevance to the
impropriety sought
to be discovered by Ms Rothman. This version is
devoid of any sense. What makes sense is that he carried a docket.
[35]
If the Applicant was threatened by the police as he says, the
statement he made should have been
highly incriminating and not
exculpatory as it turned out to be. The belief in his innocence would
drive him to protest his innocence
at the time of his arrest,
explaining that he was helping Ms Rothman who was also present at the
scene. According to the evidence
of Mr Dreyer the Applicant did not
do so.
[36]
From all the foregone analysis the probabilities of this matter point
to one direction, namely
that notwithstanding any findings that
favour the version of the Applicant, the overwhelming probabilities
favoured the acceptance
of the evidence of the Third Respondent as
the Commissioner found.
[37]
In respect of the challenge to procedural fairness the Commissioner
cannot be faulted for the
finding that n
o
evidence was led regarding the extent to which the Applicant was
prejudiced by the failure to provide him with the transcript.
Further
that, there was no indication that the Applicant could not have been
expected to argue the internal appeal without a transcript
of the
record of the disciplinary enquiry. What the Applicant did was to
complain about the absent record but he did not demonstrate
the
consequences thereof. It must be borne in mind that in this matter
there were available documents to utilise. Once it was ascertained
that the transcript was missing a copy should have been arranged for
with transcribers at that early stage and the issue of funds
could be
resolved later.
[38]
In respect of sanction, it has to be remembered that the police
perform a public function. Members
of society need to trust the
police in carrying out their statutory functions properly, diligently
and honestly even when no one
is looking. Failing this, society is
likely to take the law into their hands with a catastrophic result
that living in a democracy
would become a dream that was never
attained. The trust relationship in this matter is not limited
between the employer and the
employee but it extents to the public
served by the police officers. It stands as a reasonable finding by
the Commissioner that
it
goes without saying that a police officer who accepted a bribe should
not be allowed to continue holding the position of police
officer.
Public interest requires that such police officer be removed from the
police service.
I
hold that the award is reasonable and has to be allowed to stand.
[39]
The following order must therefore be issued, taking into
consideration the law and fairness
of the matter:
1.
The
review application in this matter is dismissed.
2.
The
Applicant is ordered to pay the costs hereof.
______
Cele J
Judge of the Labour
Court of South Africa.
APPEARANCES:
1.
For
the Applicant: In person.
2.
For
the Third Respondent: Mr D Pillay
Instructed
by the State Attorney, Durban.
[1]
Act Number 66 of
1995, hereafter referred to as the Act.
[2]
Act Number 51 of
1977, hereafter referred to as the CPA.
[3]
See
Gold
Fields Mining SA (Pty) Ltd v CCMA and Others
(2014)
35 ILJ 943 (LAC), paragraph 17 where Court held: 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.
[4]
See in this
respect paragraphs 16 and 18 in the decision of
Gold
Fields Mining SA (Pty) Ltd v CCMA and Others
,
supra.
[5]
Act
51 of 1977.
[6]
Act
66 of 1995.
[7]
Number
26 of 2000