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[2017] ZALCJHB 474
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South African Police Services v Safety and Security Sectoral Bargaining Council and Others (JR2215/15) [2017] ZALCJHB 474 (4 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Not
of interest to other judges
Case
No. JR 2215/15
In
the matter between:
SOUTH AFRICAN POLICE SERVICES
Applicant
and
SAFETY
& SECURITY SECTORAL BARGAINING COUNCIL
COMMISSIONER
M H RANTHO N.O.
PEEHA ROLPH MAKOBELA
First
Respondent
Second
Respondent
Third Respondent
Heard:
07 November 2017
Delivered:
07 November 2017
Edited:
04 December 2017
EX
TEMPORE
JUDGMENT
BARNES
AJ
[1]
This is an application to review and set
aside the arbitration award issued by the second respondent,
Commissioner Rantho,
under the auspices of the first respondent,
the Safety and Security Sectoral Bargaining Council, on 11 May 2015.
The review
application was launched 12 weeks late and is accompanied
by an application for condonation. The third respondent’s
answering
affidavit in the condonation application was filed late and
there is an application for condonation in respect of that also.
[2]
Mr Mphahlele, who appeared for the
applicant, stated that the third respondent’s application for
condonation came to his attention
for the first time in court today.
Be that as it may, the answering affidavit was only 10 days late, and
the delay is explained
by the third respondent’s attorney, Ms
Motsekuoa, on the basis that she incorrectly assumed that she had a
further 10 days
after the filing of the third respondent’s
notice of intention to defend to deliver the answering affidavit.
This is, in
my view, an acceptable explanation. Given this and
the slight delay, I am prepared to grant condonation for the late
filing
of the third respondent’s answering affidavit in the
condonation application.
[3]
I turn to consider the application for
condonation for the late filing of the review application. The
applicant’s explanation
for lateness is set out in some detail
in its founding affidavit in support of its condonation application.
What is set out
there is a litany of administrative errors and delays
which resulted in the late filing of the answering affidavit.
[4]
The third respondent submits that there are
periods of time during the delay period that have not been adequately
explained.
While this is correct and while the explanation is
wanting in these respects, I am of the view that it cannot be said
that the
explanation is wholly inadequate or unreasonable. I am
therefore of the view that this is a case where, while the
explanation
is not satisfactory in every respect, it is sufficiently
cogent to warrant the consideration of the prospects of success. I
will
consider this aspect below. Before doing so however, it is
convenient to deal with deal with two preliminary points taken by the
applicant in relation to the third respondent’s answering
affidavit in the review application. These are firstly, that the
deponent to the answering affidavit, Mr Ramashidsa, had no
locus
standi
to oppose the review
application, and secondly, that the Commissioner of Oaths who
commissioned the answering affidavit had an
interest in the matter.
There is, in my view, no merit in the applicant’s first point.
The third respondent is a POPCRU
member, and Mr Ramashidsa is
the POPCRU shop steward who represented him in the arbitration
proceedings. Mr Ramashidsa clearly
has standing in these
circumstances to depose to the answering affidavit in the review
application on the third respondent’s
behalf.
[5]
The applicant’s second point,
however, does have merit. It was common cause between the
parties that Mr Chuene, who
commissioned the third respondent’s
answering affidavit in the review application is the same Mr Chuene
who testified in
the arbitration proceeding on the third respondent’s
behalf. As such, he clearly had an interest in the matter and his
commissioning
of the answering affidavit in the review application
was in contravention of Regulation 7.1 of the Regulations Governing
the Administration
of an Oath or Affirmation published in Government
Gazette No R1258 of 21 July 1972. Regulation 7.1 provides, and
I quote:
“
A
Commissioner of Oaths shall not administer an oath or affirmation
relating to a matter in which he has an interest.”
[6]
Mr Edwards, who appeared for the third
respondent, conceded that Mr Chuene’s commissioning of the
third respondent’s
answering affidavit contravened Regulation
7.1. Mr Mphahlele, on behalf of the applicant, submitted that the
consequence of this
was to render the third respondent’s
answering affidavit
pro non scripto
,
and that I ought accordingly to treat the review application as
unopposed. Whether I take the answering affidavit into account
or not
ultimately makes no difference to my conclusion on the merits. It is
therefore not necessary for me to determine what the
consequences of
the contravention of Regulation 7.1 are insofar as the third
respondent’s answering affidavit is concerned.
[7]
At a disciplinary enquiry, the third
respondent pleaded guilty to two charges of theft and one charge of
handing his service pistol
to a third party for purposes of
committing a crime. He was dismissed. At the arbitration the sole
issue before the Commissioner
was whether the sanction of dismissal
imposed on the third respondent was appropriate in the circumstances.
The Commissioner found
that it was not and ordered that the third
respondent be reinstated and pay the applicant a fine of R500.00 in
respect of each
of the charges against him.
[8]
The third respondent’s case at the
arbitration was that he had entered into a settlement agreement with
the applicant in terms
of which he would plead guilty to the charges
against him and pay a fine of R500 in respect of each charge, and in
exchange, he
would not be dismissed.
[9]
The third respondent contended that his
dismissal by the applicant in the face of this settlement agreement
was inappropriate and
unfair. The question is whether the evidence
before the Commissioner bore out the settlement agreement contended
for by the third
respondent. The Commissioner found that it did. He
did so on two bases. First, he found that the evidence of the
settlement agreement
presented on behalf of the third respondent was
not contested by the applicant in the arbitration. This is not
correct. The third
respondent testified that the settlement agreement
was drawn to the attention of the disciplinary enquiry chairperson
(“the
chairperson”) on two occasions. The chairperson
however, who testified on behalf of the applicant, strenuously denied
this.
He was adamant that at no stage during the disciplinary inquiry
was any settlement agreement brought to his attention. The
Commissioner
failed to have regard to this evidence.
[10]
The other basis for the Commissioner’s
finding appears at page 7 of his award as follows:
“
However, on
page 17 of EXHIBIT A, it is evident that the
representative
of the employer during the disciplinary inquiry recommended that the
employee be given a fine of R500 for each count.
I find that
this is consistent with the version of the applicant, that there was
a plea bargaining in existence herein.”
[11]
This is indeed a correct reflection of the
evidence led at the arbitration. However, what it shows is that far
from there being
a settlement agreement between the applicant and the
third respondent, the applicant’s representative merely
recommended
to the chairperson of the disciplinary enquiry that the
third respondent be given a fine as a sanction. The chairperson was
still
charged with deciding on the appropriate sanction and did so.
[12]
Clearly, had the applicant wished to
conclude a settlement agreement with the third respondent, it would
simply have done so and
there would have been no need to proceed with
the enquiry and require the chairperson to make a determination.
[13]
The Commissioner’s finding that the
evidence before him established that the parties that concluded the
settlement agreement
was therefore not borne out by the evidence
before him.
[14]
This is a case in which the applicant has
strong prospects of success, which compensates for its explanation
for lateness which,
as I have indicated earlier, is unsatisfactory in
certain respects. For these reasons I am inclined to grant the
applicant’s
condonation application.
[15]
As set out above, the basis of the
Commissioner’s award,
viz,
that the parties had effectively settled the matter at the
disciplinary enquiry, was not borne out by the evidence before him.
The applicant is correct in its submission that, as such, the award
is not one that a reasonable commissioner could have reached.
It
therefore falls to be reviewed and set aside.
[16]
The parties were in agreement that costs in
this case should follow the result.
[17]
I therefore make the following order:
ORDER
1.
Condonation for the late filing of the
third respondent’s answering affidavit in the condonation
application is granted.
2.
Condonation for the late filing of the
applicant’s review application is granted.
3.
The arbitration award of the second
respondent issued under case number PSSS421/14, dated 11 May 2015, is
reviewed and set aside.
4.
The matter is remitted to the first
respondent for consideration by a Commissioner other than the second
respondent.
5.
The third respondent is to pay the
applicant’s costs.
________________________
H
BARNES
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Adv M Mphahlele
Instructed
by:
The State Attorney
For
the Third Respondent: Adv B Edwards
Instructed
by:
Makgahlela Mashaba Attorneys