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[2016] ZALCJHB 278
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Mhlanga v Safety and Security Sectoral Bargaining Council and Others (JR2086/12) [2016] ZALCJHB 278 (2 March 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
number: JR 2086/12
In
the matter between:
HH
MHLANGA
Applicant
and
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
First Respondent
P
H KIRSTEIN
N.O
Second
Respondent
SOUTH
AFRICAN POLICE
SERVICES
Third Respondent
Heard:
02 March 2016
Ex
tempore
judgment: 02 March 2016
Date
edited and signed: 26 July 2016
EX
TEMPORE
JUDGMENT
STEENKAMP,
J
:
[1]
This is an application to have the
arbitration award by the second respondent, Advocate Paul Kirstein, a
panellist of the Safety
and Security Sectoral Bargaining Council (the
first respondent) reviewed and set aside. It arises from the
dismissal of the
employee, Mr H H Mhlanga, who was a member of the
South African Police Services until he was arrested, allegedly with
Mandrax drugs
in his possession, after which he was disciplined and
dismissed.
[2]
It is common cause that the incident
referred to happened on 31 October 2007. The SAPS carried out a
surprise arrest after
they had been tipped off by an informer.
The first witness who gave evidence at the arbitration, W J Smit, a
police officer
employed at the Organised Crime Unit, testified that
ten days earlier, on 21 October 2007, there was an uncompleted drug
deal between
the employee, Mr Mhlanga, and the informer. The
deal could not be completed but the informer tipped off the SAPS and
they
intercepted the employee driving a Toyota Corolla, together with
two passengers in the car. They stopped the car, ordered
the
three occupants out and ordered them to lie down on the ground.
They found a green and white bag with Mandrax tablets
under the
driver’s seat.
[3]
From the photographs presented at the
arbitration, it is clear that the Mandrax tablets were found under
the front part of the driver’s
seat and not at the back of the
driver’s seat. The applicant, that is Mr Mhlanga, simply
denied that he had any knowledge
of the drugs. The arbitrator
took into account his evidence, together with that of Mr Smit and Mr
Jacobs, who is also an
officer in the organised crime unit.
[4]
The arbitrator considered this evidence
together with the photographs that were handed into evidence.
He noted that the version
of Jacobs that the Mandrax tablets were
found in the vehicle remained uncontested. He also noted that
the photographs confirmed
that the Mandrax tablets were found under
the driver’s seat inside the vehicle driven by Mhlanga.
[5]
What was disputed was where the lady
passenger was seated in the vehicle. Jacobs indicated that she
was seated behind the
front passenger. Mhlanga said that she
was seated behind him, that is behind the driver’s seat,
obviously trying to
argue that she could have shoved the tablets
under his seat. The photographs show that the lady passenger
was lying on the
ground on the left of the car, next to the left rear
passenger seat, after the passengers ahd been ordered out of the car,
and
the arbitrator drew the inference on a balance of probabilities
that she was seated behind the front passenger seat and not behind
the driver’s seat.
[6]
The arbitrator rejected any suggestion that
she could have placed the plastic bag with the drugs under the
driver’s seat.
He also noted that it is common cause that
the applicant was the owner of the vehicle in which the Mandrax
tablets were found.
He concluded that SAPS had proven on a
balance of probabilities the allegations of misconduct against the
applicant.
[7]
Mr
Baloyi
,
for the applicant, argues that the award is reviewable on essentially
four grounds. I will deal with each of them.
The first is
that the SAPS had not proven that the tablets were in fact Mandrax.
Firstly, when I debated that with him in
argument today, he could not
point me to any instance in the record where Mhlanga actually placed
that issue in dispute.
Secondly, it must be noted that this is
an arbitration and not a criminal trial. The SAPS officers
testified throughout that
they had found Mandrax tablets in the
vehicle. Mhlanga’s defence, firstly, was a bare denial,
and secondly, trying
to shift the blame onto the lady passenger.
He did not challenge SAPS to prove that the tablets were indeed
Mandrax and not
something innocuous, like Panado or Disprin.
That ground of review is rejected.
[8]
The second ground of review is that the
arbitrator did not properly consider the evidence before him when
faced with two mutually
destructive versions. That centred
mainly on the question where the lady passenger was seated. As
I have noted, Mhlanga
said that she was seated behind him, whereas
the arbitrator found, based on Jacobs’s evidence and the
photographs, that she
was seated on the left rear passenger seat,
thus making it improbable that she could have shoved the tablets all
the way under
the driver’s seat right up to the front where
Mhlanga was sitting and driving. The Court has had occasion to
peruse
those photographs as well. It is abundantly clear to me
that on the probabilities, the arbitrator’s conclusion is an
entirely reasonable one.
[9]
Thirdly,
Mr
Baloyi
argued that SAPS should have called additional witnesses, referring
to the case of
Tshishonga
v Minister of Justice and Constitutional Development
[1]
,
where the court said that:
“
Failure
of a party to call a witness is excusable in certain circumstances,
such as when the opposition fails to make out a
prima
facie
case.
But an adverse inference must be drawn if a party fails to testify or
place evidence of a witness who is available and able
to elucidate
the facts, as this failure leads naturally to the inference that he
fears that such evidence will expose facts unfavourable
to him or
even damage his case.”
[10]
It is unclear to me why Mr
Baloyi
argues that it was necessary for SAPS to call any further witnesses
in this case. On the evidence that SAPS did adduce, together
with the photographs that they submitted in evidence, the arbitrator
was placed in a position to make an award and to draw a conclusion
on
a balance of probabilities, as he must do in an arbitration, as
opposed to a criminal case where the State has to prove the
case
beyond a reasonable doubt.
[11]
Fourthly, Mr
Baloyi
referred to what he called “inconsistencies” in SAPS’s
case before the arbitrator. Those were that Smit,
who was the
investigating officer, failed to say which officer had searched the
female passenger; that Smit did not ascertain the
“status”
of the male passenger, such as where he lived; that Jacobs’s
statement that a photograph of sealing
of the tablets demonstrated
that when the vehicle was searched the applicant was next to him was
somehow misleading; and that Jacobs
was not sure about the position
of the lady passenger.
[12]
I fail to see how those issues amount to
inconsistencies. On the evidence before him, the arbitrator was
in a position to
come to a conclusion on a balance of probabilities,
and the conclusion that he came to was no so unreasonable that no
other commissioner
could have come to the same conclusion.
[13]
Lastly, Mr
Baloyi
argued that the arbitrator committed an irregularity when he noted
that the applicant did not explain on his version where the
drugs had
come from. Again, it must be noted that this is not a criminal
case, and although the applicant has a right to
remain silent, I
agree with Mr
Nhlapo
that one would have expected of an innocent employee to explain that,
for example, he was innocently driving along when he picked
up two
hitchhikers who had bags with them and that he had no idea what was
in those bags. Taken together with the previous
incident on
21 October 2007, on a balance of probabilities, once again, the
arbitrator’s conclusion is not unreasonable.
[14]
Insofar
as the parties before the court need any reminder that the test for
review is by now trite, it has been set out time and
time again in
Sidumo
v Rustenburg Platinum Mines
[2]
,
Herholdt
v Nedbank Ltd
[3]
and
in
Gold
Fields Mining
SA
(Pty) Ltd (Kloof Gold Mine)
v
CCMA
&
others
[4]
.
In
that case, that is
Gold
Fields
,
the court noted that:
“
A
piecemeal approach in dealing with the arbitrator’s award is
improper, as a review court must necessarily consider the totality
of
the evidence and then decide whether the decision maker or the
arbitrator is one that a reasonable decision maker could make”.
[15]
As
Mr
Nhlapo
pointed out, in the recent case of
Palluci
Home Depot
(Pty)
Ltd
v
Herskowitz
[5]
,
the LAC referred back to
Head
of the Department of Education v
Mofokeng
[6]
and noted that:
“
For
a defect in the conduct of the proceedings to amount to a gross
irregularity, as contemplated by section 145(2)(a)(ii) of the
LRA,
the arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result.”
And
further on:
“
Flaws
in the reasoning of the arbitrator, evidence in the failure to apply
the mind, reliance on irrelevant considerations or the
ignoring of
material factors, et cetera, must be assessed with the purpose of
establishing whether the arbitrator has undertaken
the enquiry in the
wrong manner or arrived at an unreasonable result.”
[16]
In the case before me, the arbitrator
undertook exactly the correct enquiry, he considered the evidence
before him, and he came
to a conclusion on a balance of probabilities
that another arbitrator could have come to. The award is
therefore not reviewable.
[17]
With regard to costs, I agree with Mr
Nhlapo
that I have to consider that this is no ordinary employee. He
was a police officer who had to ensure that the law is upheld
Instead, he broke the law. He was properly and fairly dismissed and
he then chose to incur further legal costs in attacking an
award that
was reasonable and not open to review.
Order
The
application for review is dismissed with costs.
_______________
AJ
STEENKAMP
Judge
of the Labour Court
APPEARANCES:
APPLICANT:
M M MBaloyi (attorney).
THIRD
RESPONDENT: S B Nhlapo
Instructed
by the State Attorney.
TRANSCRIBER’S
CERTIFICATE
This
is to certify that,
insofar as it is audible
, the aforegoing
is a true and correct transcript of the proceedings recorded by means
of a mechanical recorder in the matter of:
HH
MHLANGA / SAPS
CASE
NUMBER:
JR2086/12
RECORDED
AT:
JOHANNESBURG
DATE
HELD:
2 MARCH 2016
TRANSCRIBER:
AG VAN STADEN
DATE
COMPLETED:
4 APRIL 2016
NUMBER
OF CD/audio files:
1
NUMBER
OF PAGES:
8
REPORT
ON RECORDING
DIGITAL AUDIO
RECORDING TRANSCRIPTIONS
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[1]
[2007]
4 BLLR 327
(LC) para 112.
[2]
[2007]
12 BLLR 1097 (CC).
[3]
(2013)
34
ILJ
2795 (SCA).
[4]
[2014]
1
BLLR 20 (LAC).
[5]
[2015]
5 BLLR 484
(LAC) at para 16.
[6]
[
2015
]
1
BLLR 50
(
LAC
).