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[2018] ZALCCT 3
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Department of Correctional Services v Domingo and Others (C154/16) [2018] ZALCCT 3 (2 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C154/16
In
the matter between
THE
DEPARTMENT OF CORRECTIONAL
SERVICES
Applicant
and
DOMINGO
DANIEL WANDILE
First Respondent
JUSTICE
NEDZAMBA N.O.
Second Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Third
Respondent
Heard:
25 October 2017
Delivered:
2 February 2018
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed review of an arbitration award under case number
GBPC 892/15. The first respondent (Wandile) was dismissed
after being
charged with the following offences:
“
You
are alleged to have contravened RES 1/2006 Annexure A Clause (MM)
“Commitment of common law or statutory offence whilst
on duty
and in premises in that in and around November 2010 you sexually
penetrated an 11 year old minor whilst on duty in uniform
and in your
departmental residential house.
You
are alleged to have contravened Res 1/2006 Annexure A Clause
“Bringing the Department’s name into disrepute in that
in
and around November 2010 you sexually penetrated an 11 year minor
whilst on duty in uniform and in your departmental residential
house
and these allegations are reported in the media and social networks
mentioning the Department of Correctional Services.”
[2]
The second respondent (the Arbitrator) found that the dismissal of
Wandile was substantively unfair and reinstated him with
retrospective effect from the date of his dismissal. This application
was launched two months and one week late and condonation
is sought
by the applicant. Wandile opposes the condonation application.
I grant condonation for reasons that shall become
apparent below.
[3]
The review application is comprehensive. I do not find it necessary
to deal with all the grounds of review set out therein.
The applicant
submits that the award is not one that a reasonable decision maker
could have reached on the evidence before him,
in particular the
conclusion that: “there was not sufficient evidence to show
that the applicant had penetrated the Complainant.”
[4]
The Arbitrator summarised the evidence of the Complainant inter alia
as follows:
“
The
Complainant testified that she is 16 years old and born on 25
February 1999. One morning the applicant woke her up asked her
to go
and brush her teeth. He then led her to his bedroom. He aggressively
picked her up, laid her on his bed, took off her pyjamas,
opened her
legs and penetrated her with his penis. At that time she was 11 years
old. Her young sister and two of the applicant’s
younger
daughters were also in the house.
The
applicant was in his uniform when he penetrated her. After he
penetrated her, he gave her some substance mixed with water to
drink.
He told her not to tell anyone. He went back to work. When the
applicant returned from work at 16h the atmosphere was normal
and
nothing was different.
During
2011 she told her best friend that she had told her mother that the
applicant had touched her. She did not tell her that
she was raped.
She was scared to tell her mom because her mother and the applicant’s
wife are sisters and she did not want
to break her close
relationship.
After
a year, her other took her to a doctor for a medical examination. The
doctor examined her vagina. She was not told the results.
She sat in
the front seat with the applicant and the applicant/s wife sat in the
back seat….
During
cross examination she testified that she could not remember the day
that the incident occurred. All that she remembers was
that it
happened in the morning. Her private parts were sore but she did not
see any blood. She did not complain to anybody…”
[5]
Dealing with the evidence of one Jenkins a registered nurse of 17
years’ experience, working at Kimberley Thutbuzela Rape
Crisis
Centre who performed a gynaecological examination on the Complainant
on the 6
th
of January 2014, the Arbitrator stated as
follows in his award:
“
87.
The J88 revealed that there were no injuries and regarding the hymen,
there was nothing written in her report
to indicate whether it was
intact or not. The whole gynaecological examination as it appears
from the report shows that no injuries
were observed in all sections.
Her ultimate conclusion however was that the physical injuries
observed corresponds with vaginal
penetration. This finding is
inconsistent with the complainant’s testimony that she had no
injuries. Furthermore the J88
report itself shows that there were no
injuries. Jenkins failed to explain these internal contradictions.
88.
The J88 revealed there was a cleft. According to Jenkins a cleft is
an old scar which heals
within 15 days. Her evidence further suggests
that clefts disappear with time. Comparing the time that she examined
the complainant
at the time that Dr Irwin examined the complainant,
it is more probable that Dr Irwin stood a better chance of observing
any visible
injuries or scars. While Jenkins evidence was
gynaecological, there is no evidence that Dr Irwin’s medical
exam was not gynaecological.
What is certain is the Dr Irwin’s
examination was vaginal.
89.
Furthermore, the J88 report does not show any signs of a hymen being
partially broken. Jenkin’s
evidence is that the complainant’s
hymen was partially broken. Her evidence did not go unchallenged.
She
conceded that penetration of a 38 male to an 11 year old would cause
more substantial harm to the hymen.
Considering this, actual
penetration would have been difficult if not improbable to achieve.
Her evidence that the hymen was partially
broken is inconsistent with
the complainant’s version that the applicant made movements
while penetrating her In balancing
the probabilities, and in not
excluding the possibilities, and in considering the applicant’s
physical body and the age of
the complainant at the time of the
alleged incidence, I find it more probable that the hymen would have
completely broken.”
(my emphasis)
[6]
The record shows the following exchange of Nurse Jenkins testimony
under cross-examination:
“
MR
OLIVIER: Alright. Now you see the problem that we have here is that
these injuries took place in November 2010 and it was by
a 30
something old man. Would the hymen and everything still be partially
intact if that was the situation?
CORDELIA
JENKINS: It is possible that the hymen can be partially intact, yes
even if there was a cleft.
MR
OLIVERIA: Would not the injuries be much worse?
CORDELIA
JENKINS: Yes it is possible and it is also not possible. It all
depends on the penetration, how it was.”
[7]
It is clear from the above, that the Arbitrator’s finding that
Nurse Jenkins conceded “that penetration of a 38
male to an 11
year old would cause more substantial harm to the hymen”
materially deviates from what is on record. Furthermore,
Dr Irwin, a
general practitioner did not give evidence at the arbitration. There
was no direct evidence as to the exact nature
of the examination by
Dr Irwin in 2011, who according to hearsay evidence told the
Complainant’s mother she ‘was fine’.
On the other
hand the J88 Report prepared by Jenkins concluded that: “on
gynaecological examination physical injuries observed
corresponds
with vaginal penetration.”
[8]
As submitted by Ms Nyman on behalf of the applicant, the Arbitrator
was enjoined in dealing with two conflicting versions, that
of the
Complainant and that of the alleged perpetrator, to assess the
credibility and reliability of their evidence and that of
their
witnesses and to assess the probabilities. In evaluating the evidence
regarding the incident in question, the Arbitrator
records in the
Award:
“
90.
Whilst it would be unfair to expect such
a young complainant to
recall dates and occurrences with precision, it is equally difficult
to expect the applicant to defend himself
in such circumstances. I am
not surprised that the applicant found it difficult to provide more
details in support of his denial
of the incident.”
[9]
The Arbitrator also recorded that since he did not have the evidence
of a social worker or psychologist:
“
I
have considered the Diagnostic Symptoms Manual 5 (DSM5) and the
emotional effects of sexual assault victims. No evidence was placed
before me to suggest that the complainant has suffered any of the
listed symptoms. I have also considered the complainant’s
conduct after the alleged incident, the fact that she was willing to
drive with the applicant in the absence of her mother and
her
mother’s willingness to create opportunities for the applicant
and his family to spend time with them. This behaviour
is not
consistent with the earlier suggestion that the complainant did not
want to be around applicant.”
[10]
Two issues regarding the above need noting. First the record shows
that the incident where the Complainant drove with Wandile,
her aunt,
Wandile’s wife, was in the back of the car. Secondly, the
Arbitrator was not qualified to foray into the diagnostics
of
emotional impact on sexual assault victims to support his ultimate
decision.
[11]
The Arbitrator was enjoined to decide whether on a balance of
probabilities the first respondent was guilty of the misconduct
for
which he was charged, and if so whether his dismissal was
substantively fair. I agree with submissions on behalf of the
Applicant that his treatment of the evidence was materially
defective; that he failed to properly evaluate the conflicting
versions before him; and that he rejected relevant evidence such as
that by Nurse Jenkins while accepting as relevant the content
of an
academic handbook which he was not qualified to understand or apply.
In the Court’s view these defects constitute gross
irregularities.
[12]
The above gross irregularities were committed in a context in which
the Arbitrator misconstrued the nature of the enquiry before
him.
[1]
In this regard, the Court raises as a matter of law, that at the time
of the arbitration the definition of the common law offence
of sexual
penetration included “any act which causes penetration
to
any extent whatsoever
by the genital organs of one person into or beyond the genital
organs, anus, or mouth of another person'
[2]
.
(
emphasis mine)
. The Arbitrator
did not interrogate what the meaning of the common law offence
comprising the alleged misconduct was in his enquiry
into whether
there had been sexual penetration, and focussed on what he believed
was the lack of physical injury to the Complainant.
[13]
In all the above circumstances, I am of the view that the Award
stands to be reviewed and set aside. Given that issues of credibility
are key to a matter such as this, I will not substitute the Award but
instead remit it. The application for condonation is granted
in view
of the merits of the review and given that the delay was not
inordinate. I do not consider it appropriate to order costs
against
an individual respondent defending the Award made in his favour. I
make the following order:
Order
1.
The application for condonation is granted.
2.
The Award under case number GPBC 892/2015 is reviewed and set aside.
3.
The dispute is remitted to Third Respondent for arbitration anew
before an arbitrator other that Second Respondent.
_____________________
H
RABKIN-NAICKER
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: R. Nyman instructed by the State
Attorney
For
the Second Respondent: BDB Attorneys
[1]
Herholdt v
Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34
ILJ 2795 (SCA) at para 25
[2]
s 1
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007