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[2017] ZALCJHB 355
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Mgudi v Mthukwane NO and Others (JR994/15) [2017] ZALCJHB 355 (20 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR 994/15
In
the matter between:
JT MGUDI
Applicant
and
COMMISSIONER J MTHUKWANE N.O
First Respondent
SAFETY & SECURITY SECTORAL
BARGAINING COUNCIL
Second Respondent
SOUTH AFRICAN POLICE SERVICE
Third Respondent
Heard:
19
October 2016
Delivered:
20
September 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
This
is an opposed application in terms of which the Applicant seeks an
order reviewing and setting aside the arbitration award
dated
13 March 2015, which was issued by the First Respondent
(the Commissioner) under case number PSSS616-10/11, acting
under the
auspices of the Second Respondent, the Safety and Security Sectoral
Bargaining Council
(SSSBC).
In the award, the Commissioner found that the dismissal of the
Applicant by the Third Respondent, the South African Police
Service
(SAPS)
on the grounds of misconduct was fair.
Background to the
dispute:
[2]
The
Applicant, a member of South African Police Union (SAPU), was
employed by the SAPS on a permanent basis with effect from November
2002. At the time of his dismissal he held the rank of Detective
Constable. He was dismissed following upon a disciplinary enquiry
into allegations pertaining to;
a)
Contravention
of Regulation 20 (z); Defeating or obstructing the cause
of justice by exposing an undercover police agent
(Constable
Masanabo) on 4 March 2008 who was deployed to infiltrate a syndicate
involved in theft of motor vehicle, hijacking of
vehicles and house
robberies in Gauteng;
b)
Malicious
injury to property by searching, perusing and destroying the official
diary and notes of Masanabo at his safe house;
c)
Prejudicing
the administration, discipline or efficiency of a department office
or institution of the state by exposing the identity
of an undercover
police agent, Masanabo, by searching him and his ‘safe house’
with the targets; seizing, perusing
and divulging confidentiality of
police investigations and techniques, thereby endangering the life of
the agent and prejudicing
the police operation.
Arbitration
proceedings:
[3]
Following
upon his dismissal on 28 April 2009, The Applicant referred a dispute
to the SSSBC for conciliation. When conciliation
failed, the dispute
was referred for arbitration and came before the Commissioner. At the
arbitration proceedings, five witnesses
were called upon to testify
on behalf of the SAPS. The Applicant also testified and called upon
one witness to testify on his behalf.
[4]
The
evidence presented on behalf of the SAPS by Warrant Officer, Hamilton
Mabanga, who was in the Crime Intelligence Unit in Gauteng
was as
follows;
4.1
Information
was received in 2008 from the Soweto Crime Intelligence Unit that
there was a criminal (targets) operating in Mapetla
Soweto, which was
involved in the hijacking and stealing of motor vehicles;
4.2
An
agent, Masanabo (Code-named ‘Jessie’), was then recruited
to infiltrate the syndicate as part of ‘Operation
Verso’.
This involved having Masanabo being officially discharged from SAPS’
service, and his name being removed from
the SAPS’ system to
prevent him from being identified by corrupt elements within the
SAPS. A (safe) house was rented and
furnished for Masanabo in
Rockville Soweto, and all his living expenses and salary were paid
during the operation. He was further
provided with a state vehicle,
mobile phone and a budget for operational expenses.
4.3
Mabanga
was Masanabo’s handler and the latter also compiled reports for
him and kept a diary from which an intelligence report
was to be
compiled. A month into the operation, an arrangement was made to meet
with Masanabo at Thokoza Park in Rockville at 16h30
on 4 March 2008.
When Mabanga and his colleague, Sergeant Kgwadi (who arrived in a
separate vehicle) arrived at the park,
Masanabo was nowhere to
be seen. Mabanga called Masanabo on his mobile phone and the latter’s
response was that he would
meet them within 20 minutes. That time
lapsed and Mabanga again called Masanabo, who kept dropping his call.
4.4
Mabanga
then went to a car-wash place in Mapetla Soweto, where members of the
syndicate were known to meet. Upon approaching the
car-wash place,
Mabanga noticed the vehicle allocated to Masanabo parked nearby, and
further saw a group of men that had surrounded
him in a u-shaped
form. At the same time, Mabanga also saw that the Applicant was
amongst the people that had surrounded Masanabo,
and was also
pointing fingers at him.
4.5
The
Applicant was known to Mabanga since 2000 when they both started as
contract workers at SAPS, and after they were permanently
employed.
Mabanga also knew the Applicant from their past engagements at the
Provincial Office, and also since he had assisted
him in recovering a
stolen vehicle in Diepkloof, Soweto.
4.6
Mabanga
then drove past the group and then met up with Kgwadi at a later
stage to report to him what he had seen. Whilst talking
to Kgwadi,
Mabanga then received a call from Masanabo. When he answered, it was
not Masanabo who called him, but another person,
who had identified
himself as a policeman from the Vehicle Identification Unit in
Soweto. Mabanga had recognised the man’s
voice as that of the
Applicant, who had then asked him whether he knew anyone called
‘Jessie’. Mabanga had answered
in the negative, and the
Applicant then informed him that the said ‘Jessie’ was
going to be arrested as he was in possession
of a police vehicle.
4.7
Concerned
that Masanabo’s life might be in danger, Mabanga and Kgwadi
drove towards the ‘safe house’ in Rockville
and parked
about 400 meters from it whilst they observed any movements around
the house. Late in the day they had noticed some
people leaving the
house. Thereafter, Masanabo had called him, and told him that they
should meet at another place in Rockville.
4.8
Upon
meeting with Masanabo, he had informed them that his cover was blown
as one of the targets was arrested a day earlier and had
raised
suspicions that he might have been exposed by one of the gang
members. Masanabo further reported that the Applicant (whom
at that
stage he only knew as ‘Thabo’ from the National Office,
and who used to frequent the car-wash place where members
of the
syndicate regularly met), told the targets that he (Masanabo) was
responsible for the arrest of the syndicate member, and
that he had
proof that he was a police officer. The Applicant, according to
Masanabo, further told the targets that they should
go to his house
where they would find proof that he was indeed a police officer.
4.9
According
to Masanabo’s report to Mabanga, the targets then went to the
‘safe house’ accompanied by the Applicant
and another
police officer, Mzwakhe Xaba, who was also to be part of the
syndicate. At the house, the Applicant had instructed
Xaba to lift
his bed mattress as that was where police hid their firearms. Upon
lifting the mattress, they found his diary and
note pad containing
daily reports he had compiled. The Applicant had then read the
reports loudly for the benefit of other syndicate
members.
Thereafter, the group left with his diary and the note pad. After
receipt of this feedback, Masanabo had to be removed
from the
operation and the safe house.
[5]
Masanabo’s
testimony was that he was employed as a Sergeant in SAPS and
stationed at the Crime Intelligence at National Head
Office. Before
then he was placed at Tembisa SAPS. He testified regarding his
training and preparation for the operation, and that
his main task
was to infiltrate the syndicate by befriending its members. The
salient features of his testimony are as follows;
5.1
Previous
intelligence reports had indicated that the syndicate members
frequented a place called Richard’s car-wash in Mapetla.
Upon
infiltrating the syndicate and regularly going to the car wash, he
had recognized the ringleader, Peter Lebepe from the previous
intelligence reports. He was also introduced to other syndicate
members whom he had recognised from the photos shown to him
as
part of his briefing;
5.2
Whilst
at the car-wash, he managed to speak to one of the car-washers,
Richard, who had informed him that one of the syndicate members,
Mzwakhe Xaba was a police officer. This was after the said Xaba had
brought in his vehicle to be washed and after Richard had asked
Masanabo if he could wash Xaba’s vehicle first as he was a
police officer.
5.3
In
the course of the operations, Masanabo had memorised the registration
details of all the vehicles that came to the car wash,
and had on a
daily basis, met new members of the syndicate. He was even invited to
join their ‘Stokvel’ and attend
their meetings. Masanabo
also at times invited them to sleep over in the ‘safe house’.
At some point, he had raised
concerns with members of the syndicate
with the presence of police officers in their midst, and he was
assured that the officers
were their friends and helped them with a
variety of things;
5.4
On
one of his daily visits to the car-wash, one of the syndicate
members, Zizi, informed him that ‘Thabo’, who was also
a
regular at the car-wash was a police officer. The police officers
according to Zizi assisted the syndicate with the registration
and
clearance of stolen vehicles;
5.5
In
the morning of 4 March 2008, three members of the syndicate came to
the Masanabo’s ‘safe house’ and requested
him to
come over to the car wash. Upon his arrival, he had found other
members already gathered, and was informed that one of them,
Malankane was arrested in the early hours of that morning. They
raised concerns that Malankane was ‘sold’ by
someone within the syndicate.
5.6
Whilst
still at the car-wash late in the afternoon, Mzwakhe Xaba arrived,
followed shortly by the Applicant in another vehicle.
The arrest of
Malankane was again raised and the Applicant confronted Masanabo, and
told him that he was aware that he was a police
officer from Tembisa
and that he was spying on them. The Applicant further told Masanabo
that he had information from the Head
Office in Pretoria that the
undercover agent was driving a grey Honda Civic, which was also a
description of the vehicle allocated
to Masanabo;
5.7
Masanabo
had denied being an undercover agent, and the Applicant ordered the
other syndicate members to search him and his vehicle.
Nothing
incriminating could be found in the vehicle. At that time, Mabanga
had called Masanabo on his phone and his response was
that he would
call him later. The Applicant then took Masanabo’s phone to
check who had called him. He had then dialled the
last number
received on the phone and spoke to Mabanga, informing him that he was
aware of Masanabo’s real name and that
he was going to arrest
him;
5.8
The
Applicant then told the other syndicate members that they should go
to Masanabo’s house. When they arrived at the house,
they
conducted a search and could not find anything until the Applicant
told them to lift the bed and to also look under the bed
mattress.
They then found his diary and a note pad containing his daily
reports, which had the names of the syndicate members and
details of
their vehicles. The Applicant then read some of the daily reports
aloud and told the other members that he was correct
when he said
earlier that Masanabo was a police officer. They then took the diary
and note pad and left Masanabo at the house after
the Applicant had
also returned his mobile phone which he had confiscated earlier.
Masanabo confirmed having met Mabanga at a later
stage after which
the operation was abandoned.
[6]
Ludi
Rolf Schnelle, a Warrant Officer based at the SAPS’ National
Special Investigation Unit was tasked with the responsibility
of
establishing who had exposed Masanabo, in view of his employment
record having been removed from the data base and the matter
being
treated as top secret. Having conducted the investigation, it was
established that;
6.1
The
Applicant and Xaba were the police officers who had assisted the
syndicate members in exposing Masanabo. After these investigations,
the Applicant was then arrested and upon being questioned, he had
denied any knowledge of how Masanabo was exposed. He denied that
he
knew him or that he was involved in the activities of the syndicate
under investigation. He further denied having been present
at the car
wash when Masanabo was confronted, or when the safe house was
searched. His version was that he was performing his duties
on the
day in question, which was to drive around the Divisional
Commissioner (Human Resources and Career Management);
6.2
After
he had arrested the Applicant, his cell phone, which he had
confiscated as the Applicant was under arrest rang, and he had
noticed that the caller was one Butiki, who was also identified as
one of the syndicate members;
6.3
Other
investigations revealed that on 4 March 2008, the Divisional
Commissioner, who the Applicant was supposedly driving around,
had
not reported for duty on that day as it was her birthday. It was also
discovered that the Applicant had also not reported for
duty on that
day;
6.4
It
was also established that on the date in question, the Applicant was
driving a Ford Focus Sedan, and had filled petrol at 16h06
at the
Meadow Point Garage. In the logbook however, the Applicant had
recorded that he had parked the vehicle at home at the time
that he
was at the garage. According to Schnelle, the Applicant was in any
event not permitted to park the vehicle at his house.
What was even
more suspicious with what the Applicant had recorded in the logbook
was that the garage in question was about 10
km away from his house,
and it could not have taken him six minutes to fill up petrol and
reach his house. The conclusion therefore
was that there was nothing
to suggest that on the day in question the Applicant was at his house
at the same time that Masanabo’s
cover was blown.
[7]
The
Applicant’s version on the other hand was that ;
7.1
He
was familiar with the car wash, having utilised it previously, and
also having been a member of the Stokvel prior to taking up
his
position as a driver to the Divisional Commissioner at Head office in
Pretoria in 2008. Some of the targets were also members
of the
Stokvel, and they were familiar to him as he also lived in Soweto;
7.2
On
4 March 2008, he had performed his duties by driving to Bedfordview
to pick up the Divisional Commissioner’s son. He then
took him
to the University of Johannesburg, and thereafter went to Protea
Magistrate Court where he was called as a witness. He
had stayed in
Court until 15h00 when the trial was postponed. He thereafter went to
Meadowlands to visit his child.
7.3
He
confirmed that he did not report at his place of work as he had been
subpoenaed to be at the Magistrate’s Court. He also
confirmed
that he went to Meadow Point Garage and thereafter went to
Protea Glen where he stayed and parked the vehicle;
7.4
A
day or so later he met Xaba who informed him that there was an
undercover police officer by the name of ‘Jessie’,
who
wanted to join a stokvel he used to be a member of, and whose members
regularly visited the car wash in Mapetla. Some members
of the
stokvel were not comfortable with ‘Jessie’ being a member
and had asked him about what he did for a living and
where he stayed.
The members of the stokvel then went to Jessie’s house where
someone found a piece of paper on Jessie’s
bed which contained
details of the members’ vehicle registration. Upon being asked
the reason he had kept the members’
vehicle registration
details, Jessie’s response was that he was in the business of
stealing vehicles and driving them across
the border. It was at that
point that he was informed that he could not join their stokvel;
7.5
He
denied that he was ever at the car-wash on 4 March 2008 or at the
safe house. He had contended that the cell phone data information
used at the disciplinary hearing and in the arbitration proceedings
could not place him at the car wash or at Masanabo’s
house on
the day in question. He denied the allegation that he had damaged
property as he was nowhere near the safe house, and
contended that he
was merely being used as a scapegoat for a botched operation which
cost the state R300 000.00 without yielding
any results;
7.6
He
confirmed under cross-examination that he had worked with Mabanga in
recovering a stolen vehicle in Soweto. He had contended
that every
detail he knew about the incident was as a result of what Xaba had
told him, and he had no first-hand knowledge about
what took place on
that day.
[8]
Mokete
Samuel Mokoena’s testimony was essentially that he knew the
Applicant well as he used to be a member of their Stokvel
until about
January/February 2008. According to him, members of the Stokvel were
at the car wash when Masanabo ask them if he could
also become a
member. Xaba was also present at the car wash. Masanabo without being
prompted had informed them that he was in the
business of stealing
cars. The members then told him that they needed to go to his
house to see where he stayed before allowing
him to join them. The
reason for going to his house was to see where he stayed prior to
accepting him, and for members to know
where he stayed in the event
that it was his turn to host the stokvel.
[9]
According
to Mokoena, the Applicant was nowhere near the car wash on the date
of the incident, nor did he accompany him and other
14 members of his
Stokvel group to Masanabo’s house. When they reached Masanabo’s
house, he did not go inside with
the rest of the group as there were
too many of them.
[10]
He
had conceded under cross-examination that it was unusual for all the
members of the Stokvel to go to a potential members house
to see
where he stayed. When the members came out of the house they were
angry, stating that they could not allow Masanabo to be
a member of
their stokvel as he was a criminal.
The Commissioner’s
findings:
[11]
In
coming to his conclusions, the Commissioner had regard to the
provisions of Schedule 8 of the Code of Good Practice, and found
that
at the crux of the matter was whether the Applicant was present at
both the car-wash and the safe house on 4 March 2008, when
Masanabo
was confronted by members of the Stokvel. In this regard, the
Commissioner made a finding that;
a)
Mabanga
and the Applicant knew each other, and that on the date of the
incident, Mabanga saw the Applicant at the time that he passed
the
car-wash and had seen him pointing a finger at Masanabo when the
members of the group had formed a semi-circle around him.
b)
The
Applicant’s witness, Mokoena, had confirmed in the proceedings
that the group had formed a circle around Masanabo, and
that Xaba
also formed part of that group. There was therefore no reason for
Mabanga to falsely implicate the Applicant that he
was at the car
wash.
c)
At
the time of his arrest, the Applicant had made a warning statement in
which he had stated that when Masanabo’s cover was
blown, he
was at work in Pretoria. The Applicant had contradicted himself in
regard to where he was on 4 March 2008 when Masanabo’s
cover
was blown and he therefore could not be trusted.
d)
The
Applicant was not a credible witness in view of his other version
that at the time of the incident, he was at his home with
his mother
and sister. He nevertheless failed to call them to the arbitration
proceedings to corroborate his version.
e)
The
Applicant was correctly found guilty on the charges preferred against
him, as the evidence pointed to him having removed Masanabo’s
diary and notes from the safe house.
f)
There
was no evidence to support charge two relating to malicious
damage to property as nothing was placed before the proceedings
to
indicate that the records and report were destroyed.
g)
The
two other charges the Applicant was guilty of were extremely serious,
and the only suitable sanction in the circumstances was
that of a
dismissal.
The grounds of review:
[12]
Central
to the Applicant’s case is that the award was reviewable on the
basis that the Commissioner committed misconduct in
relation to his
duties; committed a gross irregularity in the conduct of proceedings,
and exceeded his powers. It was submitted
that the award embodied a
decision that a reasonable decision maker could not reach.
[13]
I
do not intent to rehash all the grounds relied upon in this review
application. In respect of the above general grounds however,
it was
submitted on behalf of the Applicant that by finding that the crux of
the dispute was whether the Applicant was at the car
wash in Mapetla
and the safe house in Rockville on 4 March 2008, the Commissioner
overlooked the evidence that the cell phone data
information did not
place him at either of these locations.
[14]
To
the extent that the Applicant and Mokoena had testified that the
former was not at the two locations, as opposed to the version
of
Mabanga and Masanabo, the Commissioner, it was submitted, should have
placed more evidentiary weight on the cell phone data
information
rather than solely relying on the evidence of Masanabo and Mabanga.
The cell phone data information it was submitted,
should have been
considered in determining the Applicant’s whereabouts on the
day in question, and this was despite the contents
of his previous
warning statement.
[15]
Although
it was not disputed that Mabanga and the Applicant were acquainted
having met about twice, it was highly improbable that
Mabanga could
have recognized the Applicant’s voice on the phone at the time
that Masanabo was at the car wash on the date
of the incident. The
Commissioner laid no basis for accepting Mabanga and Masanabo’s
evidence in respect of the events at
the car wash.
[16]
The
Applicant further takes issue with the alleged failure of the
Commissioner to consider the evidence led on behalf of the SAPS
by
Christel Booysens, who had testified as to the trust relationship
between the parties and the reason the Applicant could not
be
reinstated. He further took issue with the manner with which the
Commissioner had dealt with the evidence of the internal chairperson
of the enquiry, Adam Ntombela.
The legal position and
evaluation:
[17]
It
is trite that the review test remains whether the decision reached by
the arbitrator is one that a reasonable decision maker
could not have
reached in relation to the material before him or her. Essentially,
the Commissioner's conclusions must fall within
a range of decisions
that a reasonable decision maker could make
[1]
.
[18]
It
is further accepted that where it is alleged as in this case that the
Commissioner ignored or failed to consider material relevant
to the
facts or the issues for determination, the award will invariably be
reviewable if the distorting effect of that misdirection
was to
render the result of the award unreasonable
[2]
.
[19]
To
the extent that it was argued that the award stood to be set aside on
account of the Commissioner having placed less weight on
the evidence
presented by and on behalf of the Applicant, this court should take
heed of what was stated in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[3]
,
i.e., that;
“
The
distinction between review and appeal, which the Constitutional Court
stressed is to be preserved, is therefore clearer in the
case of the
Sidumo test. And while the evidence must necessarily be scrutinized
to determine whether the outcome was reasonable,
the reviewing court
must always be alert to remind itself that it must avoid 'judicial
overzealousness in setting
aside
administrative decisions that do not coincide with the judge's own
opinions'. The LAC subsequently stressed that the test
'is a
stringent [one] that will ensure that … awards are not lightly
interfered with' and that its emphasis is on the result
of the case
rather than the reasons for arriving at that result. The Sidumo test
will, however, justify setting aside an award
on review if the
decision
is
'entirely disconnected with the evidence' or is 'unsupported by any
evidence' and involves speculation by the commissioner.’
(citations
omitted)
And,
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the inquiry or
arrived at an
unreasonable result. 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 particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.’
[4]
[20]
From
the above authorities, it should thus be accepted that allegations in
review proceedings that the Commissioner erred in the
analysis of
evidence should be considered within the context of overall attack on
reasonableness of the result arrived at. An attack
of the award on
the basis that some material evidence was ignored, overlooked or that
not enough weight was attached to it, cannot
in itself lead to an
automatic successful review, nor would it constitute an independent
ground of review from the overall result.
[21]
Applying
the above principles to the facts of this case and in consideration
of the grounds of review, it is my view that the argument
that the
award was reviewable on account of the grounds relied upon by the
Applicant are not sustainable when regard is had to
the following
factors;
a)
The
Commissioner’s starting point, and correctly so, was to
establish whether the Applicant was on 4 March 2008, anywhere
near the car wash in Mapetla when Masanabo was initially confronted
by the members of the syndicate or the targets, and furthermore,
whether he was present at Masanabo’s ‘safe house’
where the latter’s diary and report were taken from him.
To
this end, there can be no basis for any contention that the
Commissioner misconstrued the nature of the enquiry, or at worst,
went about the enquiry in the wrong manner as shall further be
illustrated below.
b)
It
was common cause that Mabanga and the Applicant were acquainted
having met at least on no less than two occasions in the course
of
performing their duties. I did not understand that it was in dispute
that Mabanga had known the Applicant since 2000. The Commissioner’s
conclusions therefore that Mabanga would have recognized the
Applicant from a distance of about 20 meters at the car wash as part
of the group that had surrounded Masanabo and pointing fingers at
him, or that he had recognised his voice over the phone are not
far-fetched nor unreasonable. In any event, Mokoena had conceded that
indeed the group had formed a circle around Masanabo at the
time at
the car wash. It was also Masanabo’s version that the Applicant
had confiscated his phone whilst they were still
at the car wash
after he had received a call from Mabanga. The Applicant had in turn
used the same phone to call Mabanga.
c)
Even
if there was doubt about the Commissioner’s reasoning regarding
Mabanga’s evidence that he had identified the Applicant
amongst
the group of syndicate members that had surrounded Masanabo at the
car wash, there can be no similar doubt in regard to
the latter’s
direct evidence.
d)
The
operation took about one month before Masanabo’s cover was
blown. During the period Masanabo was undercover, he had come
to know
the members of the syndicate, including Xaba and the Applicant, whom
he initially got to know as ‘Thabo’. Under
sustained
cross-examination, Masanabo had insisted, contrary to what was put to
him, that the Applicant was indeed at the car wash
on the date of the
incident; that it was him who had issued an instruction to other
members of the syndicate to search him and
his vehicle, to go and
conduct searches at his house, and had instructed Xaba to search
under the bed and the mattress at his house
[5]
.
Masanabo was further adamant that it was the Applicant who had
retrieved his note pad and diary from under the bed mattress and
read
its contents loudly for the benefit of syndicate members.
e)
Other
than the above, it was Masanabo’s version that whilst they were
at the car wash, Mabanga had called him, and he had
informed him that
he would speak to him later. Thereafter the Applicant confiscated
Masanabo’s phone, and had dialled the
last number which was
that of Mabanga, who had also testified that he recognised the
Applicant’s voice.
f)
It
is therefore inexplicable that Masanabo would give such details in
regard to the chain of events, and the only probable conclusion
is
that he could not have concocted such details simply to implicate
Masanabo, whom he did not know until the operation commenced.
Neither
he nor Mabanga had anything to gain by implicating one of their own,
and the Applicant’s contention that he was being
blamed for a
botched operation is at best fanciful.
g)
To
the extent that the Applicant and his witness, Mokoena had denied
that the former was at the car wash or at the safe house, it
is my
view that the Commissioner correctly rejected their versions as not
being probable. On Mokoena’s own version, if the
stokvel
members did not allow criminals to join the Stokvel, it is strange
that despite Masanabo having told them at the car wash
that he was in
the business of stealing cars, that they would still insist on going
to see his house merely for the purposes of
knowing where he stayed
in the event that it was his turn to host the stokvel.
h)
Furthermore,
even if there was some semblance of truth in Mokoena’s version,
why would all 14 members of the stokvel go into
the house simply to
see where Masanabo stayed when they could simply have stopped at the
house and drove past. In any event, Masanabo’s
testimony that
he used to invite some of the members of the syndicate to sleep over
at his house, or that on the morning of the
date of the incident,
three of the syndicate members came to his house, did not appear to
be strenuously disputed. There would
therefore have been no other
purpose for the syndicate members, as accompanied by the Applicant
and Xaba to go to Masanabo’s
house, other than to carry out a
search as instructed by the Applicant whilst they were still at the
car wash.
i)
The
Commissioner also rejected, and correctly so, the Applicant’s
evidence in regard to his whereabouts on the day in
question. The
Applicant had proffered contradictory versions, including that he was
not on duty on that date, something corroborated
by Schnelle’s
investigations. In the same vein, he had also alleged that he was at
work driving the Provincial Commissioner
at the time of the incident.
This version however proved to be false as it was established that
the Provincial Commissioner had
not reported for duty on that day as
it was her birthday. In the alternative, the Applicant had alleged
that he was at home at
the time that the incident took place. If
indeed he was at home at the time of the incident in the late
afternoon, the Commissioner
correctly pointed out that nothing
prevented him from calling his mother or sister who were allegedly
with him at the time.
j)
The
Applicant sought to rely on the cell phone data information, which he
had alleged the Commissioner had failed to consider.
In the
end however, that piece of evidence as already indicated from the
authorities referred to, was not the only evidence that
the
Commissioner was compelled to consider or rely on. In any event, the
Commissioner’s conclusions in regard to that piece
of evidence
was that the SAPS did not rely on it, nor did the Applicant made any
effort to use it as part of his
alibi
.
k)
The
Applicant, to the extent that he had heavily relied on that
information, needed to demonstrate in these proceedings that the
alleged omission in that regard by the Commissioner or the failure to
attach any significant weight to that evidence had
a distorting
effect on the ultimate outcome, thus rendering it unreasonable. In my
view, the Applicant failed dismally in this
regard.
l)
It
is apparent from the award that what persuaded the Commissioner in
the light of the denials and disputed versions before him
were the
probabilities of the competing versions. The Commissioner had made
credibility findings and pointed out what the probabilities
were.
His reasoning and findings on a balance of probabilities in
regard to why the evidence of Mabanga and Masanabo was
to be
preferred to that of the Applicant and Mokoena is unassailable. There
is therefore no basis for any conclusion to be reached
that the
Commissioner’s decision was unsupported by any evidence, or
involved speculation on his part.
[22]
In
the light of the above, I am satisfied that the decision reached by
the Commissioner that the Applicant was correctly found guilty
on
charges 1 and 3, is a decision that falls within a band of
reasonableness, and there is no basis to interfere with it.
[23]
The
Applicant further challenged the Commissioner’s findings in
regard to the fairness of the sanction of dismissal, and contended
that the witness who had testified in regard to the breakdown of the
trust relationship did not work closely with him to make that
assessment. Flowing from a consistent misinterpretation of the
principles enunciated in
Edcon
Limited v Pillemer NO and Others
[6]
over the years in respect of the necessity to adduce evidence of a
breakdown in the trust relationship between employer and employee,
the position has since been authoritatively clarified in
Impala
Platinum Ltd v Jansen
[7]
as
follows;
a)
Edcon
turned
on its own facts and did not establish as an immutable rule that an
employer must always lead evidence to establish a breakdown
in the
trust relationship in order for the sanction of dismissal to be
appropriate
[8]
.
b)
Where
an employee is found guilty of gross misconduct it is not necessary
to lead evidence pertaining to a breakdown in the trust
relationship
as it cannot be expected of an employer to retain a delinquent
employee in its employ
[9]
c)
The
nature of the misconduct may well determine the fairness of the
sanction, and it must be implied from the gravity of the misconduct
that the trust relationship had broken down and that a dismissal is
the appropriate sanction
[10]
.
[24]
Flowing
from the above, a breakdown in a trust relationship can be
established without the necessity of evidence in circumstances
where
it can be inferred from the nature and gravity of the misconduct in
question that indeed such a relationship was no longer
sustainable.
Even in the circumstances of the present case, where it was argued
that the witness who testified on the issue of
trust relationship was
not working closely with the Applicant, the duty was still upon the
Commissioner to determine whether the
alleged breakdown in the trust
relationship could be inferred from the nature and gravity of the
misconduct in question.
[25]
In
this case, the Commissioner had concluded that the two charges upon
which the Applicant was found guilty were extremely serious
and I
agree. The nature and seriousness of the charges and the misconduct
in question needs to be considered within the context
of the primary
purpose of SAPS and its employees, especially police officers, who
are tasked with enforcing and upholding the law.
There can be no
argument that the SAPS would be unable to fulfil its mandate and
obligations towards the citizens of this country
in this regard if it
has rogue police officers within its midst, whose primary purpose is
to destabilise it, and to gain financially
from their association
with criminal elements.
[26]
What
is even more disconcerting in this case is that when Masanabo took
over the role of an undercover agent, his details were removed
from
the SAPS’ system with the sole purpose of ensuring the secrecy
of the operation and also to ensure that he could not
be traced by
rogue elements within. These measures however proved to be futile, as
his evidence was that the Applicant, when confronting
him at the car
wash had informed him that he had received information about him and
his details from the SAPS’ Head Office,
which information
proved to be spot on. If the SAPS’ own Head Office cannot even
ensure the confidentiality and secrecy of
its own operations because
of rogue elements within, what hope do ordinary citizen have, who are
at the mercy of criminals on a
daily basis ?
[27]
In
this case, it was common cause that SAPS intended to infiltrate the
syndicate that was involved in the hijackings and theft of
vehicles
in Soweto. At great expense and effort, (something that the Applicant
appreciated), an operation was set up in that regard
and Masanabo had
within a period of one month, made strides in infiltrating the
syndicate notwithstanding his limited experience
in such operations.
In the light of the conclusions that the Applicant and Xaba
frequented the car wash area where members of the
syndicate used to
meet, one wonders what kind of police officers does SAPS have in its
midst, who unashamedly socialise with criminal
elements, even if it
is within the context of Stokvel.
[28]
Socialising
with criminal elements is not what the Applicant was dismissed for,
even though that conduct in itself is inconsistent
with the ethos of
being a police officer. He was dismissed for defeating or obstructing
the course of justice by exposing Masanabo.
In this regard, I have
already dealt with the evidence in regard to how Masanabo was
exposed, including being confronted by the
Applicant at the car wash,
and the Applicant’s role in the search of Masanabo’s
vehicle and house, and confiscation
of the diary and note pad
containing all the vital information that was to assist the SAPS in
sending members of the syndicate
to jail.
[29]
Other
than the lost information and placing the whole operation at risk,
the blowing of Masanabo’s cover in front of 15 or
so syndicate
members who were on Mokoena’s version fuming after they had
searched the house could have ended badly for him.
Further as a
result of Masanabo’s cover being blown, the operation in
question had to be abandoned, resulting in a waste
of essential
resources. Worst still, the consequences of the abandonment of the
operation were that for the syndicate, it became
business as usual.
[30]
The
above conduct clearly prejudiced the administration, discipline or
efficiency of the SAPS as a law enforcement agency, and was
serious
in the extreme. The conduct in question goes against the grain of
everything that SAPS should stand for, which is to root
out
criminality in our communities. There can be no doubt that a police
officer who actively associates with and assists criminal
elements in
escaping the full might of the law does not deserve to wear a SAPS’
uniform.
[31]
In
the light of the above factors and more particularly the gravity of
the misconduct in question, it was not even necessary for
the SAPS to
call a witness to testify on whether the trust relationship with the
Applicant had been broken down, and the conclusion
reached by the
Commissioner that a dismissal was appropriate in the circumstances
cannot be interfered with.
[32]
On
the whole therefore, and in line with the principal approach in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others
[11]
,
I
am satisfied that the Commissioner considered the principal issue
before him, evaluated the facts presented at the arbitration
hearing,
and came to a conclusion which was reasonable to justify the decision
arrived at.
[33]
In
was further submitted on behalf of the Applicant that the
Commissioner committed misconduct in relation to the evidence
surrounding
the allegations of procedural unfairness of the internal
disciplinary hearing. The Commissioner had swiftly dealt with this
issue
by referring to the Applicant’s representative’s
concessions in his closing arguments that the Applicant had indeed
understood the nature of the charges against him, and that he was no
longer challenging the procedural fairness of his dismissal.
No
purpose will be served in dealing with this issue in the light of the
concessions made before the Commissioner, and I fail to
appreciate
the reason this issue was even raised in these review proceedings.
Costs:
[34]
I
have had regard to the considerations of law and fairness in regard
to the issue of costs. It is my view that given the circumstances
and
the facts of this case, this review application was indeed
ill-conceived, and there is no reason why the Applicant should not
be
burdened with its costs.
Order:
[35]
Accordingly,
the following order is deemed to be appropriate;
1.
The
application to review and set aside the arbitration award issued by
the First Respondent under case number PSSS 616-10/11, dated
13 March 2015 is dismissed.
2.
The
Applicant is ordered to pay to the Third Respondent, the costs of
this application.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. T. Govender
Instructed
by:
Thapelo Kharametsane Attorneys
On
behalf of the Third Respondent:
Adv. R Mudau
Instructed
by:
The State Attorney: Pretoria
[1]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ
2405 (CC)
at para 110
[2]
See
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC)
at
para 33, where it was held that;
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the
final analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the
irregularity or error is material must be assessed and
determined
with reference to the distorting effect it may or may not have had
upon the arbitrator’s conception of the inquiry,
the
delimitation of the issues to be determined and the ultimate
outcome. If but for an error or irregularity a different outcome
would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would
point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision
in
issue; the range of relevant factors informing the decision; the
nature of the competing interests impacted upon by the decision;
and
then ask whether a reasonable equilibrium has been struck in
accordance with the objects of the LRA. Provided the right question
was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity
or
error material to the determination of the dispute may constitute a
misconception of the nature of the enquiry so as to lead
to no fair
trial of the issues, with the result that the award may be set aside
on that ground alone. The arbitrator however
must be shown to have
diverted from the correct path in the conduct of the arbitration and
as a result failed to address the
question raised for
determination.”
[3]
[2013] 11 BLLR
1074
(SCA)
at para 13. See also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR
20
(LAC),
where
it was held that:
‘
[18]
In a review conducted under s145(2)(a)(c) (ii) of the LRA, the
review court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each of those factors and then determine whether a failure by
the
arbitrator to deal with one or some of the factors amounts to
process-related irregularity sufficient to set aside the award.
This
piecemeal approach of dealing with the arbitrator’s award is
improper as the review court must necessarily consider
the totality
of the evidence and then decide whether the decision made by the
arbitrator is one that a reasonable decision-maker
could make.’
And,
‘
[19]
To do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out
in section
138 of the LRA which requires the arbitrator to deal with the
substantial merits of the dispute between the parties
with the
minimum of legal formalities and do so expeditiously and fairly.
This is also confirmed in the decision of CUSA v Tao
Ying Metal
Industries.’
[4]
At para 25
[5]
Page 364 -
365
(170); Page 370
, Line 17 of the Transcribed record
[6]
[2010] 1 BLLR 1
(SCA).
[7]
[2017] 4 BLLR
325
; (2017) ILJ 896 (LAC);
See
also
Woolworths
(Pty) Ltd v Mabija and Others,
[2016] 5 BLLR 454
(LAC)
at
458 para 21
,
where
it was held that;
‘
The
fact that the employer did not lead evidence as to the breakdown of
the trust relationship does not necessarily mean that
the conduct of
the employee, regardless of its obvious gross seriousness or
dishonesty, cannot be visited with a dismissal without
any evidence
as to the impact of the misconduct. In some cases, the more
outstandingly bad conduct of an employee would warrant
an inference
that trust relationship has been destroyed. It is, however, always
better if such evidence is led by people who
are in a position to
testify to such break down. Even if the relationship of trust is
breached, it would be but one of the factors
that should be weighed
with others in order to determine whether the sanction of dismissal
was fair..’
[8]
At para 10
[9]
At para 13
[10]
At para 15
[11]
[2007] ZALC 66
;
[2014] 1 BLLR
20
(LAC)
At para 16