About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 333
|
|
Chokoe v Wilkes and Others (JR94/16) [2018] ZALCJHB 333 (20 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
case
No: JR 94/16
In
the matter between:
PHUTI
TODD
CHOKOE
Applicant
and
MR.
T.
WILKES
First
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Second
Respondent
MINISTER
OF
POLICE
Third
Respondent
SOUTH
AFRICAN POLICE SERVICE
COMMISSIONER
OF
POLICE
Fourth
Respondent
Heard
on: 29 May 2018
Order:
29 May 2018
Date
of Reasons: 20 July 2018
Summary:
[Review application : the Arbitrator correctly applied the cautionary
rule-burden to present evidence-the Arbitrator decided
issue in
dispute- review dismissed]
JUDGMENT-REASONS
FOR ORDER
MABASO
AJ
Introduction
[1]
This matter served before this Court on 29 May 2018. Having
heard arguments and having considered the papers, I made an
order
dismissing the review application.
[2]
The facts giving rise to this matter are rather unfortunate. At the
crack of dawn, in the winter of April 2011, a 14-year-old
girl was
raped by the applicant (Phuthi Todd Chokoe), a member of South
African Police Services (SAPS), this ordeal took place
around OR
Tambo Secondary School, concluded the SAPS and confirmed by the
arbitrator in the arbitration award which is a subject
of this review
application. This infamy led to the dismissal of the applicant by the
SAPS.
[3]
This Court has been approached
to determine whether the conclusion of the arbitrator is based on the
facts and did he reach a fair
and equitable decision. The only time
this Court will interfere with the award is when it is one that could
not have been reasonably
made taking into account the evidence
properly presented before the arbitrator.
[1]
Further, this Court in deciding this matter has to be guided by the
six pillar requirements.
[2]
[4]
The applicant approached this Court seeking an order that the award
be reviewed and set aside, and substituted with an order
that his
dismissal by the SAPS was substantively unfair. The applicant seeks
to be reinstated.
Relevant
Background
[5]
Part of the common cause facts before the arbitrator,
[3]
are summarised as follows: the applicant and Mr Tladi Joseph Mabe
(Constable Mabe)
[4]
,
employed as police officers, stationed at Kathlehong SAPS, were on
night patrol on15 April 2011, using a marked police vehicle
in the
jurisdiction of the police station. Around 22h00 they came across the
victim, they then questioned her as to where was she
coming from and
she advised them that she was from her friend’s place. They
then ordered her to get into the vehicle, which
instruction she
complied with. They then continued patrolling until around 4 am the
following morning.
[6]
It was also undisputed that during this drive the victim was asked
questions such as to whether she was a smoker, a drinker
and a
virgin. At the end of the shift, Mabe asked the applicant that they
should drop off of the victim at her parent's place,
but the
applicant said he would drop off the victim on his way to the police
station, the applicant then drop off Constable Mabe.
As to what
happened thereafter, Constable Mabe does not know because he was not
with the applicant and the victim thereafter. The
applicant made
sexual advances to the victim. The victim stated that later they went
around OR Tambo Secondary School where the
applicant parked the
police vehicle and then proceeded to have sexual intercourse with her
without her consent. After this ordeal,
the applicant threw a R50
note at her. She did not tell her parents about the incident, but she
told her friend, Mbali. Few days
later, when she was with some of her
friends, including Mbali, they saw the same two police officers (the
applicant and Constable
Mabe) driving the same police vehicle and one
of them said “
this is [her] and they were nagging”
that is when her friend advised her to lay criminal charges against
the applicant.
[7]
The victim further testified that when she made the first statement
to the police about this incident, she made a mistake in
respect of
the dates as she initially said “9
th
” April
2011 instead of “15
th
” April 2011. The
applicant during cross-examination magnified on this discrepancy as
according to him on 9 April 2011 he
was not at work. The SAPS
proceeded to arrange for an Identification Parade where the applicant
was positively identified. I need
to mention, at this juncture, that
the issue of the identification parade was not important in the
determination of the fairness
of the dismissal, as appears below.
[8]
Constable Mabe confirmed that indeed on the date of the incident the
victim was with them, but as to what happened after he
had been
dropped off, he had no idea.
[9]
Under the analysis of evidence and argument the arbitrator concluded
that it was not in dispute that the rape did take place,
but the
applicant denied that he was the perpetrator. This conclusion by the
arbitrator is on paragraph 6.9 of the supplementary
affidavit where
the applicant says “
denied that he was the person who raped
the complainant and his identity therefore had to be established”
.
The applicant’s defence was alibi as he said he had never met
the victim.
Grounds
for review
[10]
The applicant acknowledges that the arbitrator in the award indicated
that he used the cautionary rule taking into account
that the offence
that he was charged with is a sexual offence, and that the victim was
a single witness, but contends that the
arbitrator failed to apply
the cautionary rule correctly and/ or that he misunderstood the
question of the cautionary rule in respect
of a single witness. The
applicant further contends that the evidence of the victim should
have been rejected as she made two statements
mentioning two dates,
that it took the victim 24 days to report the rape to the police,
that the Identification Parade was flawed,
that there was no
corroborating evidence that the victim was raped and that the J88 did
not indicate any sign of rape.
Principle
and application thereof
[11]
This Court has to be guided by what the arbitrator had been called to
decide upon, as the Constitutional Court, in
Cusa
v
Tao Ying Metal Industries
and Others,
[5]
held thus,
“
A
commissioner must, as the LRA requires,
“
deal
with the substantial merits of the dispute”. This can only be
done by ascertaining the real dispute between the parties.
.
A commissioner is required to take all the facts into consideration
including the description of the nature of the dispute, the
outcome
requested by the union and the evidence presented during the
arbitration” (Own emphasis)
[12]
The Supreme Court of Appeal in
S
v J
[6]
in dealing with the cautionary rule held that,
“
The
notion that women are habitually inclined to lie about being raped is
of ancient origin…In my view, the cautionary rule
in sexual
assault cases is based on an irrational and out-dated perception. It
unjustly stereotypes complainants in sexual assault
cases
(overwhelmingly women) as particularly unreliable. In our system of
law, the burden is on the State to prove the guilt of
an accused
beyond reasonable doubt – no more and no less. The evidence in
a particular case may call for a cautionary approach,
but that is a
far cry from the application of a general cautionary rule.”
[13]
In Namibia, the Court of Appeal had been called to decide on the
issue of rape where it was submitted that the evidence of
the
complainant was not corroborated, Gaongalelwe J
[7]
said
“
The
appellant’s attorney has submitted that the evidence of the
complainant was not corroborated on the issue of penetration.
Where
an element of the offence involving sexual intercourse is not
challenged and is common cause between the accused and the
complainant
there
may be no need for the trial court to look for any further
corroboration on the issue
.
The
admission of such element by the accused supplies the necessary
corroboration
.
In this case the version put to the complainant by the appellant
during cross examination of the former is clear and unequivocal.
The
version is that there was sexual intercourse but that such was
consensual. In such a case the trial court cannot be faulted
for
having found against an accused person on the particular issue
.”
[8]
[14]
One has to remind himself that in order for an employer to discharge
its onus of proof, that the dismissal was fair, it has
to present
evidence to the satisfaction of the arbitrator concerned and that the
test is not the one of beyond a reasonable doubt
but the balance of
probabilities. Even though the matter herein relates to rape,
consideration has to be taken that the arbitrator
was not sitting as
a presiding officer in a criminal court.
[15]
Despite the cautionary rule being classified in
Jackson’s
case as “
based on an irrational and out-dated perception”.
The arbitrator proceeded to apply the same rule, in paragraph 42
of the award. The arbitrator did look at the fact that the victim
took some time to report the incident which could have been
necessitated by age, and that in respect of as to when the incident
took place the arbitrator acknowledged that the victim made a mistake
but confirmed that the incident took place on a Friday.
[16]
Taking into account the reconstructed records of the arbitration, and
the arbitration award, in paragraph 46 and 66 thereof,
the arbitrator
confirmed that the point that the victim was afraid to report the
rape, was not in dispute as the issue before him
was whether the
applicant was the one who raped victim. For the sake of brevity, I
deem it necessary to quote paragraph 46 of the
award which reads
thus,
“
Furthermore,
the applicant did not challenge her evidence that the rape had taken
place in the way she described but only denied
that he had been the
perpetrator”.
[17]
In line with
Cusa v Tao Ying Metal Industries
and
Ipatleng
decisions, this Court has to take into account what the issue before
the arbitrator was. The issue before the arbitrator was that
the
victim was raped, the defence for the applicant was that he was not
the perpetrator. Therefore, the arbitrator had to determine
whether
the applicant indeed was the perpetrator or not.
[18]
Even if one were to reject the evidence of the victim, there is
crucial evidence that was placed before the arbitrator by Constable
Mabe ( a fellow police officer), who stated that he did see the
victim as they drove with her for a period of more than six hours,
in
the morning and at the end of their shift he asked the applicant to
drop of the victim at her place, however, the applicant
decided to
drop him off first and then later he was to drop the victim at her
parents place. This evidence according to the records
was not in
dispute.
[19]
Furthermore, Constable Mabe confirmed that at some point him and the
applicant were charged with an offence of rape in respect
of a
different incident. This evidence was also taken into account by the
arbitrator before concluding that the dismissal was substantively
fair. Therefore, the arbitrator, whether or not he considered the J
88 and/or the tracker report of the police vehicle that was
used on
that day is neither here nor there because at the end of the day the
applicant had been linked with the rape in that he
was the last
person seen by Constable Mabe with the victim. I, therefore, conclude
that the applicant had the burden to adduce
evidence as to what
transpired after he had been left with the victim. The process of the
identification parade, whether it was
flawed or not is not important
because of Constable Mabe’s evidence, and it was not in dispute
that the victim saw them again
when she was with Mbali. I have taken
into account the totality of evidence that was presented before the
arbitrator and am satisfied
that the award is the one that a
reasonable decision-maker could have made under the circumstances.
Therefore, the award ticks
all the boxes of the six pillar
requirements.
[20]
I also note that the applicant in his supplementary affidavit had
submitted that he requested this Court to condone his late
filing of
the records and he explained as to what caused the delay. There was
no need for the applicant to deliver condonation,
as he did not fail
to comply with any of the Rules and the Practice Manual of this Court
because the records were not available
and he ended up doing a
reconstruction of the record.
[21]
These are the reasons for the order referred to in paragraph [1].
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr Gouws
Instructed by: Johan Gouws Attorneys
For
the Second Respondent: None.
Instructed
by:
[1]
Kievits Kroon Country
Estate (Pty) Limited v Mmoledi and others
[2014] JOL 31212
(SCA), at para 20
[2]
Goldfields Mining South
Africa (Kloof Gold Mine) (Pty) Ltd v CCMA and Other
s
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), at para 21 “(i) In terms of his or her
duty to deal with the matter with the minimum of legal formalities
,
did the process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute
?(ii)
Did the arbitrator
identify
the dispute he was required to arbitrate (this may in certain cases
only become clear after both parties have led their evidence)?(iii)
Did the arbitrator
understand
the nature of the dispute he or she was required to arbitrate?(iv)
Did he or she deal with
the
substantial merits
of the dispute? and (v) Is the arbitrator’s decision one that
another
decision-maker reasonably have arrived
at based on
the
evidence
.”
(Emphasis added.)
[3]
As was not disputed during the arbitration. See
The
President of the Republic of South Africa and others v South African
Rugby Football Union and Others
[1999]
JOL 5301
(CC, at para 61.
[4]
Constable Mabe was a student Constable at the time of the incident.
[5]
[2008] ZACC 15
;
2009 (1) BCLR 1
(CC), See also
DB
Contracting North CC v National Union of Mineworkers and Others
[2015] 10 BLLR 973
(LAC), see also paras 58 and 59.
[6]
1998(4) BCLR 424 (SCA). See also S v Zuma
2006 (7) BCLR 790
(W), at
page 856. Fletcher & another v S
[2010] 2 All SA 2015
SCA, para
[8] “
[the witness]
was a single witness to the rape. It is trite that her evidence
should be approached with caution. The objective
of this approach is
mainly to reduce the risk of wrong convictions.”
[7]
S v Ipatleng
(Criminal Appeal no. 94 of 2005)
[2007] BWHC 204
(11 November 2007)
[8]
Ibid at para 6.