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[2017] ZALCJHB 239
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South African Police Services v Mashigo and Others (JR1439/15) [2017] ZALCJHB 239 (22 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1439/15
In
the matter between:
SOUTH
AFRICAN POLICE SERVICES
Applicant
and
R
M
MASHIGO
First Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Second Respondent
JACKSON
MTHUKWANE
N.O.
Third Respondent
Heard
:
16 February 2017
Delivered
:
22 June 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review and set aside an arbitration
award (as varied) under case number PSSS 341-12/13. The
third
respondent (the Arbirator) found that the dismissal of the first
respondent (Mashigo) was substantively unfair. Retrospective
reinstatement was ordered, with the amount of back pay varied on the
18 June 2015.
[2]
Mashigo began his employment with the South African Police Service
(SAPS) on the 17 April 1991 and was a Warrant Officer. He
was charged
in 2011 with the following charges:
“
Charge
1:
In
terms of section 40 of the South African Police Act, 1995 (Act) No 68
of 1995) read with the South African Police Services Discipline
Regulations, 2006, you are hereby charged with misconduct, allegedly
contravened Regulation 20 (z) of the said regulations at or
near
Diepsloot during 2010-09-24 in that you committed a common law or
statutory offence of assault on a public person (Advocate
Ntshane).
Charge
2:
In
terms of section 40 of the South African Police Act, 1995 (Act) No 68
of 1995), read with the South African Police Service Discipline
Regulations, 2006, you are hereby charged with misconduct, allegedly
contravened Regulation 20 (z) of the said regulations at or
near
Diepsloot during 2010-09-24 in that you committed a common law or
statutory offence of attempted murder when you shot a public
person
(Mr. James Sefumba) with a firearm.
Charge
3:
In
terms of section 40 of the South African Police Act, 1995 (Act) No 68
of 1995), read with the South African Police Service Discipline
Regulations, 2006, you are hereby charged with misconduct, allegedly
contravened Regulation 20 (z) of the said regulations at or
near
Diepsloot d
u
ring
2010-09-24 in that you committed a common law or statutory offence of
attempted murder (Mr. Mvuselelo Goso) with a firearm.”
[3]
He was subsequently dismissed having been found guilty on all
charges. The applicant did not pursue the assault charge at
arbitration
(although the Arbitrator made findings thereon). The
version of Mashigo is recorded as follows by the Arbitrator:
“
20….On
the 24 September 2010 he went to Diepsloot to drop off witnesses in a
case that he was investigating. He drove down
Stability street and
saw two pedestrian
s
standing
inside the road. He could not pass and he stopped the vehicle. He
told the two pedestrians to move out of the way and at
that stage he
was still seated on the driver’s seat. The two pedestrians
ignored him. He climbed out of the vehicle and told
them again to
move out of the way and the woman, who later becomes known to him as
Benedicta, told him he was disturbing her.
21. Ntsane intervened and told him not
to speak to his sister but should speak to him. Ntsane thereafter
slapped him across the
face and he slapped him back. They started to
fight and his colleague came and separated them. Benedicta left the
scene to go to
the tavern/tuck shop nearby. People walked out of the
tavern to where his vehicle was parked. A man arrived at the scene
and he
was wearing a striped shirt. He stated that he took out his
firearm and cocked it and pointed it downwards. He started to retreat
but Ntsane and the man kept on moving towards him. Whilst he was
retreating, he felt someone grabbing him from behind. A struggle
ensued between him and the man. During the struggle several shots
went off from his firearm.
22. The person grabbed him with both
hands around the chest area. His colleague ran to the driver’s
side of the vehicle. The
people from the tavern started picking up
bricks. He shot two warning shots into the ground and thereafter ran
to the vehicle.
After he shot the warning shots the crowd dispersed.
His colleague drove off in high speed. He only realised later that
evening
that some people were injured. The investigation revealed
that five empty cartridges were found at the scene and only four were
matched to his firearm. He stated that he was not aware who fired the
other shot. He stated that he was unfairly dismissed and
the relief
he sought was reinstatement.”
[4]
Having summarised the evidence he considered material at the
arbitration the Arbitrator found as follows:
“
33.
I find that insufficient evidence was placed before me for me to come
to the conclusion that the applicant had the intention
to attempt to
kill James and Mvuselelo. As far as the assault charge against the
applicant was concerned, I find that his version
is preferred to that
of Ntsane and Benedicta. I find that Ntsane and Benedicta to have not
been reliable witnesses. They contradicted
themselves on material
aspects. For instance, Benedicta testified that the applicant pointed
his firearm on the head of Ntsane.
Ntsane in his evidence in chief
did not mention that aspect. I find that the applicant was also not
guilty of assaulting Ntsane.
34.
My conclusion is that the respondent has failed to prove on a balance
of probabilities that the dismissal of the applicant was
substantively fair. The applicant sought reinstatement for his unfair
dismissal.”
[5]
The applicant seeks the review of the Award
inter alia
on the
following grounds set out in its supplementary affidavit. First, that
the Arbitrator misconstrued the nature of the enquiry
before him and
therefore reached an unreasonable result in particular that:
“
He
misconstrued the nature of the proceedings in that he failed to
consider whether or not the First Respondent contravened a rule
or
standard regulating conduct in, or of relevance to, the workplace.
Had he appreciated the true nature of the enquiry he would
have
referred to the South African Police Code of Conduct (“Code of
Good Practice”) which sets out the rule regulating
conduct with
the workplace and considered whether the First Respondent knew and
had contravened it. He merely states the stipulations
of Schedule 8
of the Code of Good Conduct in his award and fails to apply it or
that he did nothing beyond mentioning the provisions
of schedule of
the Code of Good Practice.
Accordingly,
the arbitrator was required to measure up the employee’s
conduct against nothing else but the standards set out
in Code of
Conduct. As appears from the Award and the record of the proceedings,
the arbitrator completely failed to appreciate
and understand that
part of the enquiry. In consequence of which he arrived at a decision
which no reasonable decision maker would
have arrived at..”
[6]
Another ground cited by the applicant is that the Arbitrator failed
to have regard to the applicable legal principles in his
assessment
of the evidence submitting that:
“
The
arbitrator found that after an argument ensued between the First
Respondent and Benedicta and Advocate Ntsoane, the First Respondent
pulled out his firearm, cocked it and pointed it downwards. Two
people were shot in the process. In finding that the First Respondent
had no intention to attempt to kill them, the arbitrator failed to
appreciate that the conduct of the First Respondent contravened
the
South African Police Discipline Regulations, 2006. The First
Respondent ought to have foreseen the possibility that he could
kill
one of the bystanders but had recklessly nonetheless fired shots.”
[7]
Further, the applicant submits that the Arbitrator reached a
conclusion not supported by evidence in paragraph 31 of his Award.
It
avers that finding that the bullet ricocheted from the ground and
entered James’ body at the lower back and exited much
higher in
the chest cannot be supported by the material before the Arbitrator.
Evaluation
[8]
Section 40 of the SAPS Act reads as follows: “Disciplinary
proceedings may be instituted in the prescribed manner against
a
member on account of misconduct, whether such misconduct was
committed within or outside the borders of the Republic.”
Clause 20 of the Regulations provides that a member of the SAPS (z)
of the 2006 SAPS Regulations provides that a person will be
guilty of
misconduct if he or she amongst other things “commits any
common law or statutory offence.” Mashigo was not
in uniform at
the time of the incident, nor was his car marked.
[9]
The record of the proceedings reflects that the disciplinary charges
were drawn up in terms of Regulation 12(2) and 12(3) of
the SAPS
Disciplinary Regulations (2006) which deal with serious misconduct.
The 2006 Disciplinary Regulations of the SAPS
were considered by the
Supreme Court of Appeal in
Provincial
Commissioner, Gauteng: SA Police Service and another v Mnguni
[1]
as follows:
“
The
regulations in terms of which the disciplinary and appeal procedures
that led to the dismissal of the respondent were conducted
were
promulgated by the Minister for Safety & Security pursuant to the
provisions of s 24(1)(f) of the SA Police Service Act
68 of 1995. The
section empowers the minister to make regulations regarding 'labour
relations, including matters regarding suspension,
dismissal and
grievances'. The regulations are a product of an agreement reached
between the National Commissioner of SAPS, as
employer, and all the
unions admitted to the Safety & Security Sectoral Bargaining
Council (regulation 2). Their purpose is
set out in regulation 3, and
is, inter alia, to support constructive labour relations in the
police service, to ensure that supervisors
and employees share a
common understanding of misconduct and discipline, to provide a
user-friendly framework in the application
of discipline, and to
prevent possible arbitrary actions by supervisors towards employees
in the event of misconduct. Clearly,
therefore, the disciplinary and
appeal procedures that culminated in the respondent's dismissal,
including the dismissal itself,
involve employment relations, which
are expressly regulated by s 23 of the Constitution and s 185 of the
LRA.”
[10]
This Court has considered the purpose of Regulation 20(z). In
SA
Police Service and another v Van der Merwe NO and others
[2]
the Court per Molahlehi J stated:
“
[17]
The regulation seeks to raise the standard of conduct of police
officers outside their employment and to bring it into the
employment
relationship even when that conduct had nothing do with employment
issues. In my view what the regulation seeks to do
is to set a
standard of conduct outside the employment relationship. The standard
set by the regulation in general is that police
officers would not
engage in conduct or activities that —
(a)
would ordinarily not be expected of a police officer; that is
unbecoming, disgraceful
and/or improper in the eyes of both the state
as the employer and the public;
(b)
undermines the confidence of the public in the police;
(c)
projects a member as being unfit to be a police officer.
[18]
There can be no doubt that regulation of criminal conduct that falls
outside the employment relationship is not only reasonable
but
necessary for failure to do so could lead to both the breakdown in
confidence in the police and may lead to hostility and resentment
towards the police service. The essence of a rule that regulates
conduct that falls outside the employment relationship is to protect
the interest of the state as the employer. In other words, the
regulation imposes a duty on police officers even in their private
lives to conform to the ethical duties imposed upon them, the
position they occupy as police officers. The interest which the
regulation seeks to protect can be found in one of the objectives set
out in the SA Police Service Act 68 of 1995 which is to 'ensure
co-operation between the Service and communities it serves'.”
[11]
I am in agreement with the applicant that the award evinces little
comprehension of the employment relations context of the
charges
against Mashigo and in particular, the standard of conduct required
to be upheld by members of the SAPS in the communities
they serve. It
would seem to me that given this context, the Arbitrator was bound to
premise his enquiry into the attempted murder
charges on a
consideration as to whether Mashigo, acting as he did among members
of the community, could be found to have had acted
with
dolus
eventualis
. This legal
concept was explained in the matter of
Director
of Public Prosecutions, Gauteng v Pistorius
[3]
“
[26]
In cases of murder there are principally two forms of dolus which
arise: dolus directus and dolus eventualis. These terms are
nothing
more than labels used by lawyers to connote a particular form of
intention on the part of a person who commits a criminal
act. In the
case of murder a person acts with dolus directus if he or she
committed the offence with the object and purpose of
killing the
deceased. Dolus eventualis, on the other hand, although a relatively
straightforward concept, is somewhat
different. In
contrast to dolus directus, in a case of murder where the object and
purpose of the perpetrator is specifically to
cause death, a person's
intention in the form of dolus eventualis arises if the perpetrator
foresees the risk of death occurring,
but nevertheless continues to
act appreciating that death might well occur, therefore 'gambling' as
it were with the life of the
person against whom the act is directed.
It therefore consists of two parts: (1) foresight of the possibility
of death occurring,
and (2) reconciliation with that foreseen
possibility. This second element has been expressed in various ways.
For example, it
has been said that the person must act 'reckless as
to the consequences' (a phrase that has caused some confusion as some
have
interpreted it to mean with gross negligence) or must have been
'reconciled' with the foreseeable outcome. Terminology aside, it
is
necessary to stress that the wrongdoer does not have to foresee death
as a probable consequence of his or her actions. It is
sufficient
that the possibility of death is foreseen which, coupled with a
disregard of that consequence, is sufficient to constitute
the
necessary criminal intent.”
[12]
There is no indication on the face of the Award that the Arbitrator
sought to apply this legal concept or to examine the evidence
and
make a finding on the civil standard of proof, with it in mind. He
referred to ‘intent’ when finding that Mashigo
was not
guilty of the charge of attempted murder without further ado.
Further, his conclusion on the attempted murder charge in
respect to
James, appears to have been premised on his theory on ballistic
matters. No expert witness was called to testify at
the arbitration.
The Arbitrator records the following in his award:
“
31.
James testified that the bullet entered his lower back and exited on
his chest, just below the left nipple. The applicant objected
to the
admission of the J88 as the doctor who completed it was not going to
be called. It is my view that it was probable that
the bullet
ricocheted from the ground and entered James body at the lower back
and existed much higher in the chest area. The applicant
is far
taller than James and if he shot him in the manner in which Ntsane
testified then the bullet would have entered his body
in a downward
position and not upwards, as was the case in this matter. If one
accepts this version, then the applicant’s
version, is
reasonably, possibly true that he shot warning shots into the ground
and the bullet ricocheted and hit James. This
scenario would
contradict Ntsane’s version that the applicant shot directly at
James and the bullet hit him on the back.”
[13]
The above reasoning, pivotal to the result of the Award, amounts to
speculation unsupported by any evidence.
[4]
This defect, and in addition, the Arbitrator’s failure to
understand the nature of the dispute he had to arbitrate, renders
the
Award reviewable. I am not of the view that the Award should be
substituted by this Court. I do not consider it apposite to
make a
costs order given that the first respondent, an individual, has
understandably defended the review of an award in his favour.
I make
the following order:
Order
:
1.
The award under case number PSSS 341-12/13 as varied on 18 June 2015,
is reviewed and set aside.
2.
The dispute is remitted to the Second respondent for arbitration anew
before an arbitrator other than Third
Respondent.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
For
the Applicant
: V.P.
Ngutshana
Instructed
by
: The State Attorney: Johannesburg
For
the First Respondent : Hein Gerber
Instructed
by
: Bester Rhoodie Attorneys
[1]
(2013) 34 ILJ 1107 (SCA)
[2]
(2013) 34 ILJ 1579 (LC)
[3]
2016 (2) SA 317
(SCA)
[4]
See
Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as Amicus Curiae)
(2013) 34 ILJ 2795 (SCA) at paragraph 13.