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[2017] ZALCJHB 38
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Police and Prisons Civil Rights Union obo Biyela v Safety and Security Sectoral Bargaining Council and Others (JR2560/14) [2017] ZALCJHB 38 (7 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 2560 / 14
In the matter between:
POLICE AND PRISONS CIVIL RIGHTS
UNION
OBO
SANDILE LUNGA
BIYELA
Applicant
and
THE SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL
First
Respondent
L G P LEDWABA N.O. (AS ARBITRATOR)
Second Respondent
SOUTH AFRICAN POLICE
SERVICE
Third Respondent
Heard:
30 August 2016
Delivered:
7 February 2017
Summary: Practice
and procedure – late filing of review application –
proper application for condonation
needs to be made –
condonation principles set out and considered – applicant made
out no case for condonation –
application must be dismissed on
this reason alone
Bargaining council arbitration
proceedings – Review of proceedings, decisions and awards of
arbitrators – Test for review
– Section 145 of LRA –
application of review test set out – determinations of
arbitrator compared with evidence
on record – commissioner’s
decision regular and sustainable – award upheld
Bargaining council arbitration
proceedings – Review of proceedings, decisions and awards of
arbitrators – assessment
of evidence by arbitrator – no
proper record against which to assess credibility findings of
arbitrator – findings
must stand
Misconduct – collective
misconduct – principles considered – employee part of
group misconduct – employee
having knowledge of misconduct but
taking no positive action to report it – employee guilty
together with other police officers
Misconduct – dishonesty –
dismissal justified – duties of police officer discussed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award made by the second respondent
in his
capacity as an arbitrator of the Safety and Security Sectoral
Bargaining Council (the first respondent). This application
has been
brought in terms of Section 145 of the Labour Relations Act
[1]
(‘the LRA’).
[2]
This
matter arose from the dismissal of the individual applicant, Mr S L
Biyela, by the third respondent for misconduct relating
to
corruption. The individual applicant challenged his dismissal
as an unfair dismissal to the first respondent. This
dispute
came before the second respondent for arbitration, which arbitration
proceedings concluded in October 2014. Following completion
of the
arbitration proceedings, and in an arbitration award dated 14
November 2014, the second respondent found in favour the third
respondent, and decided that the individual applicant’s
dismissal by the third respondent was fair. The second
respondent
dismissed the claim. This award then gave rise to
the current review application.
[3]
The
applicant’s review application was filed on 21 January 2015,
despite the applicant having received the arbitration award
on 21
November 2014. As a result of the 6(six) weeks’ time
limit under Section 145
[2]
of the LRA within which to bring a review application, the
applicant’s review application was actually due by 5 January
2015. Because the review application was only filed on 21
January 2016, it was brought thus just more than 2(two) weeks late.
This meant the applicant needed to show good cause and thus apply for
condonation
[3]
,
in order for this Court to entertain such application.
The
issue of condonation
[4]
It is
trite that where a review application has been filed out of time and
no condonation is applied for, the Labour Court has no
jurisdiction
to entertain the application.
[4]
In
SA
Transport and Allied Workers Union and Another v Tokiso Dispute
Settlement and Others
[5]
the Court held:
‘
The
onus, generally speaking, was upon the appellants to show that the
review application had been launched timeously because this
is a fact
or element which goes to establishing the jurisdiction of the Labour
Court to hear the application for review. …
’
The
Court concluded:
[6]
‘…
where
the steps constitutes a jurisdictional step, a time-limit, and the
party is out of time then, in the absence of an application
for
condonation, a court cannot come to the party's assistance. …
’
[5]
The
applicant has failed to properly apply for condonation. The
notice of motion in the review application contains no prayer
seeking
condonation. The founding affidavit equally does not deal with
condonation at all. Condonation is briefly touched
on in the
supplementary affidavit in terms of Rule 7A(8), which was only filed
on 17 August 2015. What is however required
for a proper
application for condonation is a notice of motion, or at least a
prayer in the notice of motion in the review application,
specifically asking for condonation. The condonation so asked
for in such a prayer must then be properly supported by affidavit,
dealing with all the requirements discussed below.
[7]
[6]
The
sum total of the applicant’s condonation case, if one can call
it that, is found in three paragraphs in the supplementary
affidavit. The delay is not explained at all. It is
simply said that the applicant has a strong prospect of success
and
would suffer ‘extreme prejudice’ if condonation is not
granted. The applicant approaches the matter as if
it is
entitled to condonation.
[7]
In
specifically dealing with an application for condonation for the late
filing of a review application, the LAC in
A
Hardrodt (SA)
(Pty) Ltd v Behardien and Others
[8]
referred to the
judgment in
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[9]
and
said:
‘
The
principles laid down in that case included, firstly that there must
be good cause for condonation in the sense that the reasons
tendered
for the delay had to be convincing. In other words the excuse for
non-compliance with the six-week time period had to
be compelling.
Secondly, the court held that the prospects of success of the
appellant in the proceedings would need to be strong.
The court
qualified this by stipulating that the exclusion of the appellant's
case had to be very serious, ie of the kind that
resulted in a
miscarriage of justice.’
[8]
T
he
Court in
Academic
and Professional Staff Association v Pretorius No and Others
[10]
aptly summarized
all the considerations applicable to deciding condonation in the
instance of the late filing of a review application,
and said:
‘
The
factors which the court takes into consideration in assessing whether
or not to grant condonation are: (a) the degree of lateness
or
non-compliance with the prescribed time frame; (b) the explanation
for the lateness or the failure to comply with time frame;
(c)
prospects of success or bona fide defence in the main case; (d) the
importance of the case; (e) the respondent's interest in
the finality
of the judgment; (f) the convenience of the court; and (g) avoidance
of unnecessary delay in the administration of
justice. … It is
trite law that these factors are not individually decisive but are
interrelated and must be weighed against
each other. In weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating
for weak prospects of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.’
[9]
As
touched on above, the delay in this instance was just more than two
weeks. I may mention that in
Academic
and Professional Staff Association
a
three weeks’ delay was found to be excessive when it came to
review applications. The entire period of the delay must
be
explained, meaning that not only the late period of two weeks must be
explained, but it must be explained what the applicant
did about the
matter since receiving the award on 21 November 2014. In
setting out how the
explanation for the delay must be provided, the Court in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
[11]
held:
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay. The mere
listing of significant events which took place during the period
in
question without an explanation for the time that lapsed between
these events does not place a court in a position properly
to assess
the explanation for the delay. This amounts to nothing more than a
recordal of the dates relevant to the processing of
a dispute or
application, as the case may be.’
[10]
However,
the approach of the applicant was quite simply that condonation was
there for the asking. This the applicant did
by way of a mere
cursory reference in the supplementary affidavit, which affidavit is
not even intended for that purpose.
[12]
This approach is clearly wrong. The Court in
Seatlolo
and Others v Entertainment Logistics Service (A Division of Gallo
Africa Ltd)
[13]
was critical of
this kind of approach of entitlement, where the Court explained:
‘
It
is trite law that condonation should only be granted where the legal
requirements have been met and is not a default option.
It remains an
indulgence granted by a court exercising its discretion whilst being
cognizant of the criticism emanating from the
Constitutional Court
and the SCA and bearing in mind the primary objective of the
expeditious resolution of disputes articulated
in the Act.’
In
my view, it can hardly be said better.
[11]
It is
equally trite that without any explanation for the delay, the issue
of prospects of success are actually irrelevant.
[14]
In
National
Education Health and Allied Workers Union on behalf of Mofokeng and
Others v Charlotte Theron Children's Home,
[15]
the Labour Appeal Court said that:
‘…
this
court has previously confirmed the principle that without a
reasonable and acceptable explanation for a delay the prospects
of
success are immaterial’
.
In
this case, and because the applicant has not offered any explanation,
the alleged “strong prospects’ it says exists,
cannot
come to its assistance.
[12]
Applying
the above principles, it is my view that in essence the applicant did
not apply for condonation. That should be the end
of the matter.
But even if what is contained in the supplementary affidavit is
considered to be some or other form of a condonation
application, it
falls the proverbial mile short of what is needed, especially
considering that there is no explanation at all for
the delay.
Without even an explanation, prospects of success are immaterial.
The issue of prejudice has also not been
properly addressed. On
these grounds alone, the applicant’s review application must
fail, without even having to consider
the prospects of success in the
review application. Even if the applicant may have a “strong
case’ as it suggests,
it is my view that the following
dictum
in
Ferreira
v Die Burger
[16]
aptly describes what should equally apply
in
casu
:
‘
I
am sympathetic to the fact that the applicant may have a case but,
were we to grant this application, this court would subvert
a crucial
principle in matters which deal with personal relationships, namely
labour relations, that these disputes have to be
dealt with
expeditiously and finalized as quickly as possible. Where in a case
such as this, there has been so flagrant of violation
of the rules,
then, as Myburgh JP correctly decided, a lack of any explanation at
all shrugs off other considerations.’
[13]
The
applicant’s review application should thus be dismissed for
want of jurisdiction of this Court. However, and for the sake
of
completeness, I will nonetheless shortly deal with the merits of the
applicant’s review application, which I will turn
to next.
The
relevant background
[14]
The
individual applicant was a police officer in the employ of the third
respondent. The individual applicant was dismissed
on 28 August
2012, along with three other police officers, being Nkambule, Molapo
and Sithebe, on a charge of misconduct relating
to what was in
essence corruption in soliciting a bribe from arrested suspects for
their release.
[15]
On 5
April 2011, all the mentioned police officers were involved in the
arrest of two suspects for attempting to sell stolen copper
at a
scrap metal yard in Alrode. These two suspects were Thabo
Sibeko (‘Sibeko’) and Bongani Masetle (‘Masetle’).
They were pointed out to officer Molapo by an informant whilst
attempting to sell the copper, and it was the individual applicant
that identified them.
[16]
Molapo
then ordered Sibeko and Masetle to load the copper into a marked
police vehicle TZ 16 (‘TZ 16’) and then arrested
them and
loaded them into TZ 16 as well. TZ 16 was driven by Molapo with
the individual applicant as crew. There was
also another police
vehicle on the scene, being vehicle TZ 38 (‘TZ 38’),
driven by Nkambule. The two vehicles
then drove off, the one
following the other, towards Phola Park.
[17]
After
driving for about 400 to 600 metres to just get away from the scene,
the two vehicles then stopped on a bridge. Nkambule
got out of
TZ 38 and came to TZ 16 in which the suspects were. Nkambule
told Sibeko and Masetle that they were arrested and
would be
imprisoned for a long period, unless they paid a sum of R1 000.00,
and they would then be released. They did
not have such money
on them, and Masetle suggested that they could go to a third party,
one ‘Oupa’, who could pay the
money.
[18]
Sibeko
and Masetle were taken out of TZ 16 and told to get into TZ 38.
The copper remained behind in TZ 16. Sibeko and
Masetle sat on
the back seat with Molapo, who left TZ 16 to get into TZ 38.
Nkambule continued to drive the vehicle, and
the fourth officer,
Sithebe, occupied the front passenger seat. The individual
applicant then took to driving TZ 16, and
drove away with the
confiscated copper.
[19]
TZ 38
with all the occupants referred to above was then driven to a
premises in Khumalo Street that belonged to this Oupa, who was
found
to be present at the premises.
[20]
Nkambule
informed Oupa of the arrest of Sibeko and Masetle, and informed Oupa
that money could be paid for their release.
A discussion then
ensued between Nkambule and Oupa, and Oupa agreed to pay R800.00 for
the release of Sibeko and Masetle.
The amount was paid and they
were released.
[21]
As
stated above, the copper remained behind in vehicle TZ 16 which was
driven away by the individual applicant. This copper was
later found
in the possession of another suspect, who stated that he received the
copper from the individual applicant who dropped
it off at a scrap
yard in TZ 16. Pursuant to an investigation, the investigating
officer (Letsoalo) was informed that the
individual applicant was
working with Molapo in disposing of the copper.
[22]
All
four the police officers (including the individual applicant) were
found to be jointly involved in the above events, and were
then each
charged. The charge was that of contravening Regulation 20(Z)
of the SAPS Disciplinary regulations, 2006, in being
directly or
indirectly involved in corrupt activities by offering and then
accepting a benefit (bribe) from Sibeko and Masetle
for not arresting
them for being in possession of stolen copper.
[23]
The
disciplinary proceedings then took place before Lieutenant Colonel
Falk as chairperson. On 11 January 2012, the chairperson
found
all four the police officers guilty of the charge against them, and
the hearing then continued to deal with the issue of
an appropriate
sanction. Then, and on 1 February 2012, the chairperson
recommended dismissal as an appropriate sanction for
all the
employees. The documentary record contained a detailed written
finding by the chairperson motivating why he came to the
conclusion
that he did.
[24]
The
four employees then appealed, but this appeal was dismissed in a
written finding dated 28 August 2012.
[25]
All
four the employees, including the individual applicant, then
challenged their dismissal as an unfair dismissal dispute to the
first respondent, and this dispute came before the second respondent
for arbitration. Following the conclusion of the arbitration
proceedings, and in the arbitration award referred to above, the
second respondent upheld the dismissal of all four police officers
as
being fair. But only the individual applicant sought to
challenge the award on review.
The
test for review
[26]
The
appropriate test for review is now settled. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[17]
Navsa AJ held
that the standards as contemplated by Section 33 of the
Constitution
[18]
are in essence to be blended into the review grounds in Section
145(2) of the LRA, and remarked that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
.
The learned Judge held that the threshold test for the reasonableness
of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
[19]
[27]
Accordingly,
in every instance where the constitutionally suffused Section
145(2)(a)(ii) pursuant to
Sidumo
is sought to be applied to substantiate a review application, any
failure or error of the arbitrator relied on must lead to an
unreasonable outcome arrived at by the arbitrator, for this failure
or error to be reviewable. In my view therefore, what the review
applicant must show to exist in order to succeed with a review in
this instance is firstly that there is a failure or error on
the part
of the arbitrator. If this cannot be shown to exist, that is
the end of the matter. But even if this failure or
error is shown to
exist, the review applicant must then further show that the outcome
arrived at by the arbitrator was unreasonable.
If the outcome arrived
at is nonetheless reasonable, despite the error or failure that is
equally the end of the review application.
In short, in order for the
review to succeed, the error of failure must affect the
reasonableness of the outcome to the extent
of rendering it
unreasonable.
In
Herholdt
v Nedbank Ltd and Another
[20]
the Court said:
‘…
.
A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.’
[28]
As to
the application of the reasonableness consideration as articulated in
Herholdt
,
the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[21]
said:
‘…
.
in
a case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions a reasonable decision maker could
come to on the
available material.’
[29]
Accordingly,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[22]
This necessitates a consideration by the review court of the entire
record of the proceedings before the arbitrator, as well as
the
issues raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator. In the end, it would only be if
the outcome arrived at by the arbitrator cannot
be sustained on any
grounds, based on that material, and the irregularity, failure or
error concerned is the only basis to sustain
the outcome the
arbitrator arrived at, that the review application would
succeed.
[23]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[24]
it was held:
‘…
.
the
reviewing court must consider the totality of evidence with a view to
determining whether the result is capable of justification.
Unless
the evidence viewed as a whole causes the result to be unreasonable,
errors of fact and the like are of no consequence and
do not serve as
a basis for a review.
’
[30]
Against
the above principles and test, I will now proceed to consider the
applicant’s application to review and set aside
the arbitration
award of the second respondent.
Grounds
of review
[31]
The
applicant’s case for review must be made out in the founding
affidavit, and supplementary affidavit.
[25]
As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[26]
:
‘…
.
The
basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging the
reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
[32]
In
the founding affidavit, the applicant’s review grounds are in
essence general in nature, and unmotivated. The only proper
discernible review ground emanating from the founding affidavit is
the complaint that the second respondent did not consider that
no one
ever identified or implicated the individual applicant as being
directly involved in the events, and that the individual
applicant
was not present when the money was exchanged and the suspects
released.
[33]
In
the supplementary affidavit
[27]
,
the applicant in essence mostly elaborates on the review ground in
the founding affidavit referred to above, but just providing
further
detail to motivate this ground. The applicant complains that the
evidence against the individual applicant is ‘very
weak’
and tantamount to speculation. The applicant does add two further
review grounds, the first being a challenge of the
credibility
findings made by the second respondent where it came to the testimony
of the other three officers and the individual
applicant. The
second further review ground is a contention that it was
inappropriate and irregular for the third respondent
to deal with all
four employees collectively when the individual applicant’s
specific involvement in the incident was never
proven, an issue which
the second respondent should have appreciated.
[34]
I
will consider the applicant’s review application based on these
grounds of review.
Evaluation
[35]
In
this matter, the case of the third respondent was in essence that all
four the police officers, which included the individual
applicant,
were acting in cahoots in the extortion of a bribe from Sibeko and
Masetle, and that the misconduct was committed by
them as a group.
Where it came to the individual police officers, each one of them had
a different explanation as to what happened
on the day and what their
respective involvement was. Clearly only one scenario could be
true, and it was the second respondent’s
duty to decide which
was true. As was said in
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others:
[28]
‘
One
of the commissioner's prime functions was to ascertain the truth as
to the conflicting versions before him
’
.
[36]
In
deciding which version and case was the truth, the second respondent
considered the issue of credibility. The second respondent
stated
that whilst he accepted that the third respondent had the onus to
prove the employees had committed the misconduct, he was
nonetheless
compelled to evaluate and determine the evidence as presented by the
employees. This approach is in my view undoubtedly
correct. The
second respondent then compared the respective explanations offered
by each of the employees against one another,
and found numerous
contradictions. The second respondent also compared the evidence
presented by the employees to the statements
obtained in the course
of the investigation from all the parties involved, and once again
identified numerous contradictions.
The second respondent in
the end found the third respondent’s evidence to be more
consistent and credible, as opposed to
that presented by the employee
parties. The second respondent thus preferred the evidence and case
of the third respondent, on
the basis of a credibility finding.
[37]
In
Standerton
Mills (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[29]
the Court dealt
with credibility findings made by arbitrators as follows:
‘
...
Credibility issues are indeed difficult to determine in motion
proceedings such as these. The commissioner is undoubtedly in
a
better position to make a finding on this issue. In
Moodley
v Illovo Gledhow and Others
(2004)
25
ILJ
1462 (LC)
at
1468C-D Ntsebeza AJ observed in this regard as follows:
'Sitting
as I do as a review judge, I fail to understand, in this case, how I
could decide to set aside an award given by an arbitrator
who sat at
the hearing, observed the witnesses, their demeanour and the manner
in which they came across. I cannot see that I can
interfere merely
on an assessment of whether she misdirected herself by reason of the
fact that she considered whether the witnesses
were credible before
determining what the probabilities were in the light of their
testimonies.... I should be extremely reluctant
to upset the findings
of the arbitrator unless I am persuaded that her approach to the
evidence, and her assessment thereof, was
so glaringly out of kilter
with her functions as an arbitrator that her findings can only be
considered to be so grossly irregular
as to warrant interference from
this court.’
[38]
I
also dealt with the very issue of the challenge of credibility
findings of arbitrators, in Labour Court review proceedings, in
the
matter of
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
[30]
and said:
‘
The
issue of the importance of credibility findings made by the
commissioner being accepted in this court on review was made by
Mr
Snider
,
who represented the third respondent. He submitted that it was the
commissioner who sat in the arbitration proceedings, looked
at the
witnesses, listened to them, and assessed their credibility, and on
review, this court should not readily interfere with
this, as the
commissioner was in the best position to make these findings. I agree
with these submissions. This court should not
readily interfere with
credibility findings made by CCMA commissioners, and should do so
only if the evidence on the record before
the court shows that the
credibility findings of the commissioner are entirely at odds with or
completely out of kilter with the
probabilities and all the evidence
actually on the record and considered as a whole. Findings by a
commissioner relating to demeanour
and candour of witnesses, and how
they came across when giving evidence, would normally be entirely
unassailable, as this court
is simply not in a position to contradict
such findings. Even if I do look into the issue of the credibility
findings of the second
respondent in this case, I am of the view that
the record of evidence in this case, if considered as a whole simply
provides no
basis for interfering with the credibility findings of
the second respondent. There is simply nothing out of kilter between
the
evidence by the witnesses on record and the credibility findings
the second respondent came to. The evidence on record in my view
actually supports the second respondent's credibility findings. The
credibility findings of the second respondent therefore must
be
sustained.’
[39]
Applying
the above considerations, the applicant’s challenge where it
comes to the credibility findings of the second respondent
faces an
insurmountable obstacle. This obstacle is the failure by the
applicant to transcribe the record of the proceedings before
the
second respondent. The record discovered by the applicant in
terms of Rule 7A(6) contains the bundle of documents used
in the
arbitration proceedings, as well as 207 pages of a transcript of the
disciplinary proceedings before chairperson Lieutenant
Colonel Falk.
The second respondent, in his award, states that two cd’s were
used to record the arbitration proceedings.
These cd’s were
never transcribed, nor were the transcripts placed before me.
[40]
It is
clear from the applicant’s supplementary affidavit that it is
only relying on the transcript of the disciplinary proceedings
before
Lieutenant Colonel Falk to make out their case. But surely this
cannot assist the applicant where it is seeking to
challenge the
credibility findings of the second respondent as made in his award.
In order for the applicant to successfully challenge
these
credibility findings it needed the full transcript of the evidence
presented in the arbitration itself. In short, there is
nothing
against which to compare the second respondent’s credibility
findings. As such, there is no basis to contradict what
is contained
in the second respondent’s arbitration award, and what is
contained therein must stand. That in itself should
mean the end of
the matter for the applicant, because once the evidence of the third
respondent is to be preferred, then the applicant
must fail.
[41]
But
the second respondent did not only decide the matter based on
credibility findings. The second respondent also considered a
number
of pertinent probabilities.
[31]
This included
that the two vehicles were only driven 400 to 600 metres away from
the scene before stopping and then transferring
the suspects from one
vehicle to another, in the presence of all four the police officers.
The second respondent also considered
in this regard that no
explanation could be offered as two why these two suspects would
specifically implicate these four police
officers. These are
certainly legitimate and important considerations.
[42]
It
must also be remembered that the review test contemplates a
consideration of probabilities which may not have even been mentioned
in the award of the second respondent, so as to ascertain whether the
outcome arrived at could nonetheless be considered to be
reasonable.
In this regard, there are actually a number of further important
probabilities, specifically concerning the individual
applicant.
Firstly, it surely should have appeared to be most strange to the
individual applicant who was the crew on TZ
16, to have his driver
drive for a short distance, then stop, and move to another vehicle
with the suspects, leaving the individual
applicant to drive TZ 16
further alone. Secondly, the confiscated copper remained behind in TZ
16 driven away by the individual
applicant, who could offer no
explanation as to what actually happened to it. Thirdly, it was
the individual applicant who
identified the two suspects so that they
could be arrested, and then surely, once again, it had to have been
strange to the individual
applicant to not have the two suspects turn
up at the relevant police station to process their arrest. It must
also be taken into
account that none of the other three police
officers challenged the award of the second respondent on review.
[43]
It is
true that the individual applicant was not present when the actual
bribe was solicited and paid. But that does not change
things
materially. The individual applicant was in TZ 16 when Nkambule came
to the vehicle to tell the two suspects that they could
avoid going
to prison by paying a bribe, and then immediately after this
discussion the suspects were moved to TZ 38. It
is highly
unlikely that the individual applicant would not be aware of what was
happening. It simply does not matter that the individual
applicant
was not physically present when the bribe was paid.
[44]
In my
view, it the most natural, plausible and logical inference to be
drawn from the evidence as a whole that the individual applicant
was
involved in soliciting the bribe from Sibeko and Masetle.
In
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport,
[32]
it was held that
the inference drawn from the evidence just has to be “the most
natural or acceptable inference”, and
not the only
inference.
[33]
The second
respondent correctly appreciated this.
[45]
The
principal difficulty with the review case of the individual applicant
is that it is based on an evaluation of the evidence so
as to
establish reasonable doubt. The points made in the principal
ground of review of the applicant all serve to establish
reasonable
doubt. In short, and what the applicant says is that because no one
directly implicated the individual applicant in
the bribe, this
created reasonable doubt as to his involvement. But this is
entirely the wrong approach. The applicant
needed to show that
the inference of his involvement in the bribe was not the most
natural, plausible and logical inference to
be drawn from the
evidence as a whole, which the applicant simply did not do. The
approach of the applicant
in
casu
is similar to that I came across in
National
Union of Mineworkers
[34]
and in that judgment I said:
‘
The
difficulty I had with the case of the applicants, in challenging the
issue of the probabilities arrived at and considered by
the second
respondent, and as put forward by Mr
Maunatlala
,
was that the case was more aimed at the creation of reasonable doubt
rather than the assessment and determination of probabilities.
The
pertinent points made by Mr
Maunatlala
,
which will be referred to hereunder, were all advanced, in my view,
to establish 'reasonable doubt' as to the involvement of the
second
applicant in the misconduct. This is however not the proper test in
arbitration proceedings.’
The
same considerations now apply in this matter as well, where it comes
to the approach of the applicant.
[46]
In
the end, there is nothing irregular in the manner in which the second
respondent considered, evaluated and then determined the
evidence.
The conclusions the second respondent came to where it came to what
evidence he preferred and why, were reasonable,
and are simply
unassailable on review.
[47]
I
will turn next to the applicant’s other primary ground of
review, being the complaint that he was in essence collectively
dealt
with together with all the other miscreants, when there was no
evidence of his individual involvement. From the outset,
it
must immediately be said that the concept of holding employees
collectively accountable as a group, without having to prove
the
individual misconduct of each and every member of the group, is not
foreign to employment law. In
Foschini
Group v Maidi and Others
[35]
it was said:
‘
In
Chauke's
case the Labour Appeal Court accepted that this type of matter
presents a difficult problem for fair employment practices, and
illustrated the problem by posing the following question: 'Where
misconduct necessitating the disciplinary action is proved, but
management is unable to pinpoint the perpetrator or perpetrators, in
what circumstances will it be permissible to dismiss a group
of
workers which incontestably included them?' Cameron JA then
postulated two lines of justification for a fair dismissal in such
circumstances. The first is where an employee, who is part of the
group of perpetrators, is under a duty to assist the employer
in
bringing the guilty to book. The second is where an employee 'has or
may reasonably be supposed to have information concerning
the guilty,
his or her failure to come forward with the information may itself
amount to misconduct. The relationship between employer
and employee
is in its essentials is one of trust and confidence, and, even at
common law, conduct clearly inconsistent with that
essential
warranted termination of employment … Failure to assist an
employer in bringing the guilty to book violates this
duty and may
itself justify dismissal'. The learned judge of appeal further held
that this derived justification is wide enough
'to encompass those
innocent of it, but who through their silence make themselves guilty
of a derivative violation of trust and
confidence'.
’
[48]
The
Labour Appeal Court elaborated on what was said in
Foschini
and earlier related authorities in the judgment of
Western
Platinum Refinery Ltd v Hlebela and Others
[36]
and held:
‘…
The
effect of these dicta is to elucidate the principle that an employee
bound implicitly by a duty of good faith towards the employer
breaches that duty by remaining silent about knowledge possessed by
the employee regarding the business interests of the employer
being
improperly undermined. Uncontroversially, and on general principle, a
breach of the duty of good faith can justify a dismissal.
Non-disclosure of knowledge relevant to misconduct committed by
fellow employees is an instance of a breach of the duty of good
faith. Importantly, the critical point made by both
FAWU
v ABI
and
Leeson
Motors
is that a dismissal of an employee is derivatively justified in
relation to the primary misconduct committed by unknown others,
where
an employee, innocent of actual perpetration of misconduct,
consciously chooses not to disclose information known to that
employee pertinent to the wrongdoing. …
’
The
Court concluded:
[37]
‘
Perhaps
obvious, but important to stress in relation to the facts of this
case, the disclosure of information relevant to the wrongdoing,
pursuant to the duty of good faith, ought not be dependent upon a
specific request for relevant information; often the wrongdoing
per
se might not be known to the employer. Mere actual knowledge by an
employee should trigger a duty to disclose.
Furthermore,
the anterior premise of these considerations is that an employee is a
witness to wrongdoing, not a perpetrator. The
misconduct lies within
the bosom of a general duty of good faith to rat on the wrongdoers,
not on culpable participation, even
in a lesser degree than other
perpetrators. The employee is thus not a person who has made common
cause with the perpetrators.
A disinclination to disclose the
wrongdoing from a sentiment of worker solidarity or some other
subjective sentiment of solidarity
falling short of common purpose is
likely to be a typical explanation for non-disclosure, but is per se
not a defence to a charge
of a breach of a duty of good faith.
’
[49]
This
approach has equally been consistently applied in the Labour Court.
In
True
Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken v Commission for
Conciliation, Mediation and Arbitration and Others
[38]
the Court said:
‘
What
is clear to me is that in the case of 'team misconduct' just as in
the case of derivative misconduct and common cause purpose
there is
no need to prove individual guilt. It is sufficient that the employee
is a member of the team, a team the members which
have individually
failed to ensure that the team meets its obligations …
’
And
in
Dunlop
Mixing and Technical Services (Pty) Ltd and Others v National Union
of Metalworkers of SA on behalf of Khanyile and Others
[39]
it was held:
‘…
the
derivative misconduct the applicants relied upon related, in addition
to failing to identify the perpetrators, to a breach of
trust arising
from the failure to come forward. Either to identify the perpetrators
or to exonerate themselves …’
[50]
The
above kind of duty must surely have even more of an impetus where the
employees concerned are police officers. Any police officer
must
conduct himself or herself beyond reproach. A police officer cannot
be seen, even tacitly or impliedly, to be associated with
or even
condoning criminal activity. Where a police officer witnesses
anything suspicious or untoward, on the part of his
or her colleagues
or even superiors, this must be immediately and without hesitation
reported to someone in authority who can do
something about it.
This is especially so in cases of corruption in the form of
soliciting bribes. The only way this situation
can be rooted out, is
by individual police officers on the ground, so to speak, reporting
it. If they do not, then they must be
held accountable along with the
perpetrators they did not report for the same offence. This is
especially important because victims
seldom come forward, which is
understandable. The following sentiments in
Mphigalale
v Safety and Security Sectoral Bargaining Council and Others
[40]
must serve as a guide when considering any involvement of police
officers in corrupt activities:
‘
Corruption
by a police officer, employed in a position of trust and with a duty
to perform his or her functions in the interest
of society and in
accordance with the fundamental values of the Constitution, is a
material factor to be considered in determining
the appropriateness
of the sanction to be imposed. Not only is it a 'sensible operational
response to risk management' but it provides
a sound reason to
justify a finding that the imposition of the sanction of dismissal
was fair in the circumstances.
’
[51]
The
chairperson in the disciplinary hearing (Lieutenant Colonel Falk) was
very much alive to the above considerations. In
his finding, he
specifically said the following, in referring to the misconduct
committed by the four police officers: ‘
This
action was not a single action of one employee but was an action
where all 4 employees had a part in. It was clear that
all
members knew what the other members were doing. And the
chairperson believes if the employee were not arrested would
have
shared in the taking …
’
(sic).
That is, in short, what it was all about.
[52]
It is
untenable for the individual applicant to in essence plead ignorance,
considering all that had happened. As I have already
said above, it
is hard to believe that the individual applicant, on the
probabilities, did not know what was happening on 5 April
2011. The
circumstances were simply too suspicious and unusual to be ignored or
for the individual applicant to legitimately claim
ignorance.
And added to that, I could find no trace of an explanation by the
individual applicant as to what happened to
the copper which was left
in TZ 16 he drove away in. When the chairperson said in the
course of the disciplinary hearing
that one rotten fruit left in a
box makes the other fruit rotten, he clearly meant that all four of
the police officers concerned
must have known what was happening, and
either directly participated in the bribe, or turned a blind eye to
it thereby making them
all rotten. Far from being irregular, this was
a reasonable point of view. Whether by direct participation or
by way of turning
a blind eye, all four of the police officers,
including the individual applicant, were complicit in the wrongdoing
that happened,
and this justified their dismissal. The second
respondent’s award in this respect is simply not irregular, and
in any event
resorts well within the parameters of what may be
considered to be a reasonable outcome.
[53]
There
is accordingly no merit in the applicant’s ground of review
relating to the fact that he was dealt with as part of group,
instead
of his individual misconduct being proven. In the absence of the
individual applicant immediately coming forward, of his
own accord,
to report all that he had witnessed taking place on 5 April 2011, he
must fall with his other three colleagues. The
second respondent’s
finding that this is the case is unassailable on review.
[54]
I am
therefore satisfied that the conclusion of the second respondent to
the effect that the individual applicant was indeed involved
in the
misconduct of soliciting a bribe from the two suspects, was not
irregular, would in any event constitute a reasonable outcome,
and as
such, should be upheld. It follows that the individual
applicant’s dismissal was fair, and the second respondent’s
finding that this was indeed the case must be upheld.
Conclusion
[55]
Therefore,
and based on all the reasons set out above, I conclude that the
second respondent’s arbitration award is simply
not
reviewable. I am satisfied that the second respondent properly
conducted the arbitration proceedings, and there is nothing
untoward
or irregular in his evaluation and determination of the evidence.
Insofar as the issue of the outcome arrived at
by the second
respondent may be considered on the basis of it being reasonable or
unreasonable, there is in my view no doubt that
it would comfortably
rest within the bands of reasonableness as required, in order to be
sustainable on review. The applicant’s
review application
falls to be dismissed.
[56]
As
the applicant is not opposed, the question of costs does not arise.
Order
[57]
In
the premises, I make the following order:
1.
The
applicant’s review application is dismissed.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Adv B R Edwards
Instructed
by:
Makgahlela Mashaba Attorneys
For the Third
Respondent:
No appearance
[1]
Act 66 of 1995.
[2]
Section 145(1)(a)
reads: ‘Any party to a dispute who alleges a defect in any
arbitration proceedings under the auspices
of the Commission may
apply to the Labour Court for an order setting aside the arbitration
award - (a) within six weeks of the
date that the award was served
on the applicant …’
[3]
Section 145(1A).
[4]
See
F
& J Electrical CC v Metal and Electrical Workers Union on behalf
of Mashatola and Others
(2015)
36 ILJ 1189 (CC) at paras 29 – 30;
Zeuna-Starker
Bop (Pty) Ltd v NUMSA
(1999) 20 ILJ 108 (LAC) at paras 108 – 109.
[5]
(2015) 36 ILJ 1841
(LAC) at para 8
[6]
Id at para 18.
[7]
See
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532C-E.
[8]
(2002) 23 ILJ 1229 (LAC) at para 4.
[9]
(2000)
21 ILJ 166 (LAC).
[10]
(2008) 29 ILJ 318 (LC) at paras 17 –
18.
[11]
(2010) 31 ILJ 1413 (LC) at para 13
[12]
A supplementary
affidavit is filed in terms of Rule 7A(8) and is intended to
supplement grounds of review following the procuring
and filing of
the record of the proceedings.
[13]
(2011) 32 ILJ 2206 (LC) at para 27.
[14]
See
Mziya
v Putco Ltd
[1999] 3 BLLR
103
(LAC) at para 9;
NUM v
Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at 211G-H;
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
(2014)
35
ILJ
1948 (LAC)
at para 38.
[15]
(2004) 25
ILJ
2195 (LAC) at para 23.
[16]
(2008) 29
ILJ
1704 (LAC) at para 8.
[17]
(2007)
28 ILJ 2405 (CC).
[18]
Constitution of the Republic of South
Africa, 1996.
[19]
Ibid at para 110. See
also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at para
134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[20]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[21]
(2014) 35 ILJ 943 (LAC)
at
para 14. The
Gold
Fields
judgment was followed by the LAC itself in
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[22]
See
Fidelity
Cash Management
(
supra
)
at para 102.
[23]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016)
37 ILJ 116 (LAC) at para 32.
[24]
(2015) 36 ILJ 1453 (LAC) at para 12.
[25]
See
Brodie v Commission for
Conciliation, Mediation and Arbitration and Others
(2013)
34 ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011) 32 ILJ 730 (LC) at
para 9;
De Beer v Minister
of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27.
[26]
(2010) 31 ILJ 713 (LC) at para 27.
[27]
Filed in terms of
Rule 7A(8) on 17 August 2015.
[28]
(2011) 32 ILJ 723 (LC) at para 9.
[29]
(2012)
33 ILJ 485 (LC) at para 18.
[30]
(2013) 34 ILJ 945 (LC) at para 31.
[31]
See
SFW
Group Ltd and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at para 5 where it was said: ‘The technique
generally employed by courts in resolving factual disputes of this
nature
may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a)
the
credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.’
[32]
(2000) 21 ILJ 2585
(SCA) at para 9.
[33]
See also
Govan
v Skidmore
1952
(1) SA 732
(N)
at 734A-C;
Bates
and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
1985
(3) SA 916
(A)
at 939I-J;
Food
and Allied Workers Union and Others v Amalgamated Beverage
Industries Ltd
(1994)
15 ILJ 1057 (LAC)
at 1064C-E.
[34]
(
supra
)
at para 36.
[35]
(2010) 31 ILJ 1787 (LAC) at para 47.
[36]
(2015) 36 ILJ 2280 (LAC) at para 8.
[37]
Id at paras 14 –
15.
[38]
(2015) 36 ILJ 1375 (LC) at para 46.
[39]
(2016) 37 ILJ 2065
(LC) at para 42.
[40]
(2012) 33 ILJ 1464 (LC) at para 24.