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[2017] ZALCJHB 82
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National Commissioner of Police and Another v Safety and Security Sectoral Bargaining Council and Others (JR1920/13) [2017] ZALCJHB 82 (8 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR1920/13
In
the matter between:
NATIONAL
COMMISSIONER OF
POLICE
First Applicant
NORTH
WEST PROVINCIAL
COMMISSIONER
OF POLICE
Second Applicant
and
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
First Respondent
MASHOODA
PATEL
N.O.
Second Respondent
M.H
BORAKE
Third Respondent
R.B
MOREO
Fourth Respondent
J.M
TSATSENG
Fifth Respondent
T.M
MADONSELA
Sixth Respondent
M.P
SEREO
Seventh Respondent
Heard:
04
April 2016
Delivered:
08 March 2017
Summary:
Review application in terms of
section 145
of the
Labour Relations
Act 66 of 1995
– arbitrator disregarding partial
viva
voce
evidence on irrational grounds, and thus depriving parties of a fair
trial. Matter reviewed and remitted for a hearing
de
novo
.
JUDGMENT
HOWES
AJ
Introduction
[1]
This
is an application to review and set aside the arbitration award
[1]
(the award) issued by the second respondent, an arbitrator of the
first respondent; in terms of which the second respondent found
that
the dismissal of the third to seventh respondents was substantively
unfair. The second respondent (the Arbitrator) ordered
that the South
African Police Service reinstate the third to seventh respondents
retrospectively effective from the date of their
dismissal “
with
no loss of service and on terms and conditions no less [sic] than
those which prevailed at the time of their dismissal
.”
The third to seventh respondents were ordered to report for duty on
1 August 2013.
[2]
The
first and second applicants launched their review application in
terms of
section 145
of the
Labour Relations Act
[2
]
on or about 5 September 2013. Thereafter, they filed the
record of the proceedings with the Labour Court on or about
4 February 2014 and their supplementary affidavit on or
about 20 March 2014. The third to seventh respondents
filed
their answering and confirmatory affidavits on 3 April 2014.
The applicants filed their replying affidavit on or
about
20 May 2014.
[3]
The matter was set down
for hearing on 14 January 2016. However, the applicants
failed to place a proper record of the
arbitration proceedings before
me and accordingly, I granted the applicants a postponement so that
they could remedy their failures.
It was agreed in Court on
14 January 2016, that the matter would be set down for
hearing on 15 February 2016, however,
on the date in question, the
applicants’ counsel failed to attend the hearing and as a
result, the applicants were required
to seek a further postponement
of the proceedings. The respondents legal representative was ready to
proceed and requested that
costs be awarded against the applicants in
the event that I was inclined to grant the postponement. In assessing
the matter, in
particular, the previous postponement that I had
afforded the applicants, I made the following order:
“
1.
The matter is postponed to 4 April 2016;
2.
The costs of the Respondent occasioned by this postponement are to be
paid by
the First and Second Applicants on an attorney and own client
scale.”
[4]
The matter was argued
before me on 4 April 2016.
Background
Facts
[5]
The third to seventh
respondents were employed as police officers by the first and second
applicants and they held various ranks
within the South African
Police Services. They were stationed at the Jouberton Police Station
in the district of Klerksdorp.
[6]
The third to seventh
respondents were charged with various charges of misconduct and
following an internal disciplinary enquiry
they were dismissed from
service after they were found guilty of
inter
alia
corruption and
a contravention of the Disciplinary Regulations of 2006. On appeal,
the second applicant upheld the findings of
the internal disciplinary
chairperson. The third to seventh respondents were dismissed from
service. With the assistance of their
trade union, POPCRU, the third
to seventh respondents referred an unfair dismissal dispute to the
first respondent on or about
9 November 2012.
[7]
The arbitration
proceedings took place over the period of 26-27 March 2013
and 18-20 June 2013.
[8]
On
the first day of the arbitration, namely 26 March 2013, the
Arbitrator read the signed pre-arbitration minutes (held on 22
January
2013) into the record.
[3]
[9]
The minutes reflected
inter alia
that the only admitted common cause fact was that the third to
seventh respondents went to Mr Petrus Danki’s (Mr Danki)
address and an amount of R10 000 was handed over to the third
respondent. The parties agreed that the issue in dispute was whether
the actions of the third to seventh respondents constituted a
statutory or common law offence. The Arbitrator was only required
to
make a determination on substantive fairness.
[10]
On
26 March 2013, the applicants led the evidence of Captain George
Letshwenyo and Warrant Officer Segopolo John Motlhaoleng. On
27 March 2013, the evidence of Warrant Officer William
Kgotso Mokgitla was led and thereafter evidence in chief in respect
of Mr Danki (an informant) was led and completed. Cross-examination
of Mr Danki commenced,
[4]
however, his cross-examination was not completed when the matter
adjourned for the day.
[11]
Parties were required
to reconvene on 18-20 June 2013.
The
postponement application and the arbitrator’s ruling on
postponement
[12]
On 18 June 2013, Mr
Danki, who was still under cross-examination and who was the
applicants’ key witness failed to attend
the arbitration
proceedings. The applicants submitted that Mr Danki was not in
attendance due to illness, however, they did not
have a copy of his
medical certificate to hand up. The Arbitrator stood the matter down
to 19 June 2013 and requested that Mr Danki’s
medical
certificate be sent to the first respondent. On 19 June 2013,
Mr Danki failed to appear at the arbitration
and no medical
certificate had been secured by the applicants. Mr Manyafane was
afforded a brief opportunity to attend at
Mr Danki’s house
to establish what the situation was, however neither Mr Danki or
his wife were at the house. Only
Mr Danki’s daughter was at the
house and she could not shed any light on their whereabouts.
[13]
Mr Manyafane confirmed
that he had in fact spoken with Mr Danki on 18 June 2013
and Mr Danki told him that he was
not in a position to attend on
18 June 2013, as he had been suffering from sugar diabetes
and had to seek medical help.
He confirmed that he would be in
attendance on 19 June 2013 and that he would bring the
medical certificate with him.
[14]
As a result of his
absence, Mr Manyafane sought a postponement on the basis that
inter
alia
Mr Danki was a
key witness, that he had indicated that he was suffering from sugar
diabetes, that his cross-examination was underway
and that the
applicants would be denied a fair opportunity of properly advancing
their case as in the absence of Mr Danki’s
evidence, most of
the evidence led would amount to hearsay. Furthermore, the applicants
argued that fairness together with prejudice
considerations dictated
that a postponement should be granted.
[15]
Mr
Burger opposed the application for a postponement although he did
concede that Mr Danki was a key witness.
[5]
The basis for the opposition was
inter
alia
that there was no proof of incapacity; Mr Danki’s whereabouts
were totally unknown; his phone was off; and he had not made
any
contact despite being warned to be present on 18 June 2013 to
continue with cross-examination. Mr Burger further submitted
that if Mr Danki was not available that Mrs Danki should be
called as she was also a witness for the applicants and he believed
that there was no justifiable reason for her to be with her husband
to hold his hand. He submitted further that the postponement
application was simply an effort to try and drag the proceedings out
and to prejudice the respondents, especially in relation to
legal
costs.
[16]
In response thereto, Mr
Manyafane indicated that Mrs Danki could not be called as she had
been with Mr Danki when he went to
the doctor due to the
severity of his disease. He further stated that per their
conversation, Mr Danki confirmed that he would
be present on 19
June 2013 and that he would bring his medical certificate with him.
He submitted further that it was possible
that Mr Danki’s
condition had deteriorated although he could not confirm this. He
submitted that his absence should be interpreted
as an indication
that his health had deteriorated. Mr Manyafane was asked by the
Arbitrator what guarantee he would provide
to secure Mr Danki’s
attendance if the matter was to be postponed. Mr Manyafane
indicated that—
“
I
make the point that he is, will be available, but if he is not,
because I cannot really guarantee you that much, if he is not
in,
then we proceed with this matter with or without his presence, but
let me make, say to the Commission today that if the Commissioner
grants me a remand of this matter, I will try my level best to make
it a point that he is in the next occasion.”
[6]
[17]
The
Arbitrator then handed down her ruling on the postponement
application on 19 June 2013. She refused the application
for postponement
[7]
and in
addition ordered that the costs pertaining to 18 June 2013,
be paid by the applicants. I deal with the ruling
on postponement,
and reasons provided in the award, in due course.
[18]
As neither Mr Danki or
Mrs Danki were present to testify, the applicants had no option but
to close their case.
[19]
The third to seventh
respondents then led their evidence on 19 June 2013 and
20 June 2013. The evidence of Constable
Patrick Serero,
Student Constable Tsholofelo Minkie Madonsela and Warrant Officer
Herman Mandla Pule Borake was led on 19 June
2013. On 20 June 2013,
the evidence of Constable Jackie Morabedi Tatsing and Constable
Itumeleng Buti Moremo and Mr Pogisho
Josiah Lebetsa (Sabata) was
led. Parties agreed to submit written closing arguments.
Summary
of the misconduct in question
[20]
It is alleged that Mr
Pogisho Josiah Lebetsa (referred to in the transcript as “Sabata”)
contacted Mr
Danki
to
help him find a buyer for a diamond that he had in his possession. Mr
Danki assisted Sabata in finding a buyer for the diamond
and a
meeting was set with the buyer on or about 27 December 2011. Sabata
arrived at the meeting with Constable Patrick Serero
(“Mpho”
and further referred to as the “seventh respondent”). The
buyer (a third party) subsequently purchased
the diamond from Sabata
for R30 000.00 and Sabata then gave R10 000.00 to Mr Danki as
commission for helping him sell the diamond.
[21]
Later that day however
it is alleged that Mpho called Mr Danki and accused him of “robbing”
Sabata and thereafter some
of the other respondents arrived in a SAPS
vehicle at Mr Danki’s premises and he was asked why he had
robbed Sabata out of
R20 000.00. Mr Danki handed Mpho what he has at
the time, which was the sum of R2000.00 in order to placate him, and
Mpho left
with his colleagues.
[22]
Over the course of the
next two days it is alleged that Mpho called and demanded more money
from Mr Danki. In addition, Mpho stopped
past the house while Mr
Danki’s daughter was at home and advised Mr Danki that in the
event that he did not pay him R20 000.00,
he would have him arrested.
[23]
Following the telephone
call from his daughter where she informed him that Mpho and some
police officers had stopped past the house,
Mr Danki contacted the
police’s organised crime unit and reported the diamond deal and
the fact that threats were being made
against him by police officers.
The organised crime unit then became involved and it was agreed that
a trap would be set.
[24]
The organised crime
unit arranged for R10 000.00 to be made available for purposes of a
trap. Mr Danki was then required to call
Mpho and an arrangement was
made to meet Mpho at Mr Danki’s house at 8am. Police officers
from the organised crime unit were
then stationed in and around
Mr Danki’s home.
[25]
At 8am a white van
driven by the third respondent arrived. The third to seventh
respondents were all present. The third respondent
went into
Mr Danki’s house and sat at the dining room. The other
respondents were waiting outside Mr Danki’s
premises.
Mr Danki handed the money over to the third respondent. The
third respondent counted the money and then he walked
out of
Mr Danki’s house with the R10 000.00. It was at this
juncture that the police officials from the organised crime
unit
arrested the third to seventh respondents on suspicion of corruption.
[26]
The third to seventh
respondents claimed, however, that they were there to arrest Mr Danki
and his wife. However, they did
not have any arrest warrants or a
docket in their possession at the time (which would have been
required in order to effect a lawful
arrest). This was a key issue
for determination at the arbitration.
The
Arbitrator’s key findings
[27]
The Arbitrator found that the dismissal of the third to seventh
respondents was substantively unfair. In brief, having dismissed
the
postponement application, the Arbitrator disregarded Mr Danki’s
viva voce
evidence in its entirety, made adverse credibility
findings against Mr Danki, disregarded other evidence of the
applicant as inadmissible
hearsay evidence, and preferred the version
of the third to seventh respondents on the issue of whether they were
attempting to
arrest Mr Danki or extort a bribe from him. The
Arbitrator duly ordered the retrospective reinstatement of the third
to seventh
respondents.
[28]
It is not necessary to repeat the full grounds of review as pleaded
in the review papers, due to the view I take on the decision
to
disregard material and relevant evidence. It is also not necessary to
restate the test on review, as it is well established.
The
decision to disregard Mr Danki’s evidence in its entirety
[29]
In my view this issue is determinative of the review application, and
I deal with it upfront.
[30]
Mr Danki’s evidence was clearly of critical importance to the
applicants’ case – he was the only witness
who could
provide direct evidence of the central events underpinning the
charge. Absent his evidence, the applicants’ case
was
significantly weakened.
[31]
Mr Danki testified at length as to the events in question, and was
cross-examined on various aspects of his evidence at the
previous
sitting of the arbitration. The transcribed record of his
cross-examination runs to some 37 pages.
[32]
The reason why Mr Danki’s cross-examination could not be
completed, was because of his apparent illness, and the decision
of
the Arbitrator to refuse the postponement.
[33]
The arbitrator’s findings in this regard are as follows:
“
39.
On account of the fact that the witness Mr Danki’s version
could not be tested, his evidence
was not canvassed and does not form
part of this award. His evidence is thus struck from the record.”
[34]
Having struck Mr Danki’s evidence from the record, the
Arbitrator proceeded to consider apparent contradictions in the
initial reports made by Mr Danki to the organized crime unit,
and concluded as follows:
“
96.
… In respect of this matter, the complainant thereof [Danki]
could not identify same correctly.
The issue could not be clarified
by the complainant thereof as he had abandoned his testimony. …
It is on this basis that
I find that the statement by Mr Danki
was untruthful and should not have been taken into consideration by
the respondent.
97.
It must also be noted that the testimony of the respondent’s
witnesses in respect
of this aspect amounted to hearsay evidence and
is disregarded.”
[35]
In summary, having decided to ignore Mr Danki’s evidence in its
entirety, the Arbitrator nonetheless made adverse credibility
findings against him (at one stage referring to him as a “known
criminal”). Furthermore, the Arbitrator rejected the
evidence
of the applicants’ witnesses in this respect on the ground that
it constituted hearsay evidence.
[36]
It is clear that the decision
to ignore Mr Danki’s
viva
voce
evidence had a
material (if not decisive) impact on the outcome of the proceedings.
Was the manner in which the Arbitrator dealt
with Mr Danki’s
incomplete evidence reasonable? In my view it was not, for the
reasons encapsulated in
Gaga
v Anglo Platinum Limited and Others
[8]
,
where Murphy AJA held that:
“
As
regards the commissioner’s ruling in respect of the similar
fact evidence, that too was a reviewable irregularity.
The
exclusion of evidence that ought to be admitted will be either
misconduct in relation to the duties of a commissioner or a gross
irregularity in the conduct of the arbitration proceedings, as
contemplated in section 145(2)(a) of the LRA
. In the context of
an unfair dismissal arbitration, similar fact evidence of a pattern
of behaviour or serial misconduct will often
be relevant to both the
probabilities of the conduct having been committed and the
appropriateness of dismissal as a sanction.
It may be more so where
the alleged misconduct is characterised by an element of impulsivity,
as often the case with sexual misconduct.
There ordinarily would be a
sufficient link or nexus between the earlier similar misconduct (if
proved) and the disputed facts
pertaining to a method of commission,
or a pattern possibly revealed, to make that evidence exceptionally
admissible.
Given the nature of the evidence which the first
respondent proposed to lead, and the fact that the allegations would
have been
known to the appellant, it would not have been unfair
or oppressive to have allowed the evidence because the appellant had
adequate notice and was in a position to deal with it.
The
consequence, however, of the commissioner irregularly excluding the
evidence in the present case, in the final analysis, is
neutral or
inconsequential in the adjudication of the issue of unreasonableness.
Had the first respondent requested the labour
court to remit the
matter to the CCMA for the admission and hearing of the excluded
evidence, the irregularity alone would have
been sufficient for that
purpose.
By
itself, it constituted an irregularity sufficient to set aside the
award, because without more it resulted in the commissioner
failing
to have regard to material facts and thereby impeded a full and fair
determination of the issues. In certain instances
where evidence is
irregularly not admitted by a commissioner, the only fair remedy may
well be for the matter to be remitted to
the CCMA.
However,
where, as in the present case, there is sufficient other evidence
enabling the court to determine the fairness of the dismissal,
then,
in order to avoid further delay and prejudice to the successful
party, the court should rather substitute its own decision
for that
of the commissioner. In which case, as now, the irregularity will
serve only to strengthen the conclusion, based on the
presence of
other irregularities, that the arbitration was latently and
procedurally flawed, and perhaps unreasonable in its outcome.”
(Emphasis added and footnotes omitted.)
[37]
The decision taken by the
Arbitrator to exclude Mr Danki’s evidence in its entirety does
in my view, amount to a
gross
irregularity in the conduct of the arbitration proceedings. In doing
so, the Arbitrator denied the applicants a fair hearing.
The
Arbitrator was in possession of Mr Danki’s prior statements,
she had heard his entire evidence in chief at the arbitration
and a
portion of his cross-examination. In addition, the applicants’
other witnesses corroborated portions of Mr Danki’s
evidence
and irrespective of the Arbitrator’s view that their evidence
amounted to hearsay evidence, she was at the very
least, required to
weigh and consider the evidentiary value of all of the evidence that
was presented including hearsay evidence.
In support hereof, I refer
to
Matsekoleng
v Shoprite Checkers (Pty) Ltd
[9]
,
where Ndlovu JA held that:
“
Section
3(1)(c) of the said Act [Law of Evidence Amendment Act 45 of 1988]
confers a discretion on a court (or Tribunal) in terms
of admitting
hearsay evidence if, in the opinion of the court (or Tribunal), as
the case may be, it is in the interests of justice
to admit such
hearsay evidence. The fact that the respondent’s representative
would not have been in a position to cross-examine
the author of, or
deponent to, the affidavit if it was admitted, was not, in my
opinion, a legally sound ground to have refused
admission of the
affidavit, in the light of section 3(1)(c). That aspect of the matter
would only be relevant on the question of
the evidential weight to be
attached to the affidavit evidence concerned. As the matter stood, it
did not appear that the Commissioner
properly applied his mind on
this issue, if at all. In my view, the Commissioner’s failure
in this regard constituted a serious
misdirection and a gross
irregularity, on the Commissioner’s part in the conduct of the
arbitration proceedings, which rendered
the award reviewable and
liable to be set aside.
In
any event, it seemed to me that, by applying the pre-1988 strict
common law rule against hearsay evidence on the admission of
the
affidavit, as the Commissioner apparently did, the Commissioner did
not thereby “deal with the substantial merits of
the dispute
with the minimum of legal formalities” as required of him by
section 138(1) of the LRA. In
Local
Road Transportation Board and another v Durban City Council
and Another
the Appellate Division (now the Supreme Court of Appeal (Holmes JA)
stated:
“
A
mistake of law per se is not an irregularity but its consequences
amount to a gross irregularity where a judicial officer, although
perfectly well-intentioned and bona fide, does not direct his mind to
the issue before him and so prevents the aggrieved from having
his
case fully and fairly determined.”
In
my view, therefore, the failure by the Commissioner to apply his mind
properly of the issue of admissibility of Mr Roberts’
affidavit constituted a material error of law and a gross
irregularity on the part of the Commissioner which prejudiced the
appellant
in her right to a fair hearing.”
[38]
Given that the decision to disregard the entirety of Mr Danki’s
viva voce
evidence, and the rejection of the respondent’s case
on grounds of constituting hearsay evidence amounts to a reviewable
irregularity, it is not necessary to deal with the further grounds of
review.
[39]
In light of the seriousness of the consequences of refusing the
postponement, it is arguable that the refusal of the postponement
does not amount to a proper exercise of the arbitrator’s
discretion. I do not need to make any findings on this issue.
Appropriate
relief
[40]
Having decided to review and set aside the award, I must now decide
whether to replace the arbitration award with an award
that I regard
as fair based on the evidence before me, or whether I should remit
the matter back to the CCMA for hearing afresh.
It is trite that the
Court has a discretion in this regard.
[41]
Given the Arbitrator’s failure to allow a full ventilation of
the issues, the only possible remedy is to remit the matter
back to
arbitration afresh before a different arbitrator.
Order
[42] I
make the following order:
1.
The arbitration award issued under case number PSSS 521-12/13
dated
10 July 2013, is reviewed and set aside.
2.
The matter is referred back to the Safety and Security Bargaining
Council (SSSBC) for an arbitration hearing before a new and senior
commissioner to be appointed by the SSSBC.
3.
There is no order as to costs save for the order on costs previously
granted on 15 February 2016, in favour of the third to seventh
respondents.
4.
The application in terms of section 158(1)(c) is dismissed,
with no
order as to costs.
__________________
D Howes
Acting
Judge of the Labour Court of South Africa
Appearances
On
behalf of the Applicant:
K Mhango (Advocate)
Instructed
by:
State Attorney, Johannesburg
On
behalf of the Respondent:
PJ Greyling (Attorney)
Instructed
by:
Pieter J Greyling Attorney
[1]
Case number
PSSS 521-12/13, dated 10 July 2013.
[2]
66 of 1995.
[3]
Transcript Volume 1 pages 3–4.
[4]
Transcript Volume 3 pages 340–377.
[5]
Transcript Volume 4 page 383 at paras 6-7.
[6]
Transcript
Volume 4 page 385 line 20-26.
[7]
Transcript
Volume 4 page 387 line 19 - 390 line 16.
[8]
[2012] 3
BLLR 285
(LAC) paras 45 and 46.
[9]
[2013] 2
BLLR 130
(LAC) at paras 41-3.