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[2018] ZALCPE 38
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South African Police Service v Hoza and Others (PR 07/2017) [2018] ZALCPE 38 (7 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PR 07/2017
In
the matter between:
SOUTH
AFRICAN POLICE SERVICE
Applicant
and
MZILOWO
MAXWELL
HOZA
First Respondent
POLICE,
PRISONS AND CIVIL RIGHTS UNION Second
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Third
Respondent
NALEDI
BURWANA-BISIWE
N.O
Fourth Respondent
Heard:
13 June 2018
Delivered: 07 December 2018
JUDGMENT
TLHOTLHALEMAJE,
J.
[1] The third
respondent (Hoza), a former Sergeant in the employ of the applicant
(SAPS) was dismissed on account of a variety of
acts of misconduct on
19 March 2015. The fourth respondent (Commissioner) in an
arbitration award issued on 16 November 2016
found the
dismissal of Hoza to be substantively unfair, and had ordered his
reinstatement, together with payment of back-pay. Aggrieved
with the
arbitration award, SAPS seeks an order to review and set it aside.
Hoza as assisted by the second respondent (POPCRU)
opposed the review
application.
[2] It is common
cause that the review application was launched some two weeks outside
the statutory time periods. The deponent
to the founding affidavit in
respect of the review, Warrant Officer Thobani Jalimeni, averred that
the delay was occasioned by
the internal workings and protocols
within SAPS, and his involvement in arbitration proceedings in
respect of other matters.
[3] This Court
enjoys a discretion when deciding whether to grant condonation in
circumstances where the review application was
filed late. Having had
regard to the period of two weeks delay, which in my view is not
excessive, the extensive and acceptable
explanation proffered
for that delay, the reasonable prospects of success on the merits in
the main application; the prejudice
that the parties would suffer
should condonation be granted or refused, and the interests of
justice, it is deemed appropriate
that the late filing of the review
application should be condoned.
The review:
[4] In summary, the
charges that led to the dismissal of Hoza following an internal
disciplinary enquiry are:
1) Using a SAPS
vehicle without permission;
2) Damaging SAPS’
vehicle following an accident;
3) Falsely stating
that at the time that the accident took place he was chasing a
suspect;
4) Providing
transport to a member of the community in a state vehicle without
completing the prescribed indemnity forms;
5) Failing to make
entries in his book or diary regarding the alleged duties performed
by him;
6) Reckless and/or
negligent driving.
[5] Following Hoza’s
dismissal, an alleged unfair dismissal dispute was referred to
the third respondent (SSSBC).
When conciliation failed, the
dispute came before the Commissioner for arbitration.
[6] It was common
cause that Hoza was based at the Fort Brown Police Station in the
Eastern Cape. He was also a POPCRU shop steward.
A state vehicle used
by him was involved in an accident in the early hours (at about
01h44) of 1 September 2013. The
vehicle overturned
somewhere outside of the Makhanda (Grahamstown) jurisdiction. At the
arbitration proceedings, SAPS called upon
seven witnesses to testify
on its behalf. The essence of the witnesses’ testimony was that
Hoza called his colleague, Constable
Skepe to advise him of the
accident after it had occurred. Skepe had attended to the accident
scene where he had assessed Hoza’s
condition, picked the
latter’s firearm from the accident scene, handed it over to
him, and saw him off into an ambulance
that took him to a hospital to
attend to his injuries. At the accident scene was also another
person who had been a passenger
in the state vehicle when the
accident took place, and Skepe took him home.
[7] Sergeant
Mkontwana was also called by Hoza after the accident happened. Upon
his arrival at the accident scene, Hoza told him
that he was in
pursuit of a suspect in another vehicle when the accident took
place.
[8] Warrant Officer
Hlwempu was the Station Commander at Fort Brown Police Station at the
time of the incident. His testimony was
that he was not aware of any
rhino poaching operation planned for the weekend that Hoza alleged he
was involved in when the accident
happened. Having investigated the
matter and consulted the OB entries at the station, he had discovered
that Hoza had made an entry
at 20h30 on 31 August 2013 to
book himself to be involved in a rhino poaching operation. Such an
operation however had
not been sanctioned and his view was that Hoza
had used the state vehicle without authority and for an unauthorised
event. The
use of the state vehicle had impacted on the station’s
fuel budget.
[9] Hoza’s
testimony was essentially that he was authorised to use the vehicle
as it was issued to him in April 2013.
He had booked himself for
duty on 31 August 2013 at 20h00 to conduct rhino poaching
and stock theft operations, which
were in line with the station event
matrix for between 3 and 31 August 2013.
[10] At the time
that the accident took place, he was in pursuit of a suspect having
been tipped off by a source. Having looked
for the suspect
without success, he then decided to drive back from Makhanda to his
base. Along the way he picked up a stranger
who was hitchhiking. The
stranger turned out to be someone known to him from his residential
area in Peddie and he gave him a lift.
His contention was that he was
unaware of any obligation to complete indemnity forms before giving
persons a lift in a state vehicle.
The accident took place when a
vehicle driving in the opposite direction crashed into his vehicle.
He had denied that he had had
said that the accident took place
whilst he was in pursuit of a suspect in another vehicle. He had also
lost his trip and pocket
books, together with the vehicle log book at
the scene of the accident.
The award:
[11] The
Commissioner found that despite the fact that Hoza was a shop
steward, the fact that POPCRU was not informed of the intention
to
discipline him did not give rise to procedural unfairness.
[12] Regarding the
substantive fairness of the dismissal, the Commissioner in regards to
the second charge (causing damage to the
vehicle) and sixth (reckless
and negligent driving), found that SAPS had not established that Hoza
had intentionally or negligently
used the vehicle or caused damage to
it. This conclusion came about on the basis of a report presented at
the hearing that showed
that the vehicle was moving at 39km at the
time of impact or before the accident.
[13] In regards to
the failure to make entries in the pocket book or diary regarding the
trip or alleged duties performed, the Commissioner
found that Hoza
could not be found guilty of that charge in the absence of those
books that got lost at the scene of the accident,
and further since
Hoza had in any event made an entry in the OB at the police station
before he took the vehicle.
[14] In respect of
the allegation that Hoza gave false information regarding events
surrounding the accident, the Commissioner accepted
Hoza’s
denials that he had not informed Mkontwana that he was chasing a
suspect at the time of the accident, and the report
in regards to the
speed of the vehicle at the time of the accident supported Hoza’s
version that he could not have been speeding
in pursuit of a suspect
at the time of the accident.
[15] In regards to
the charge related to giving members of the public a lift in the
state vehicle without completing the indemnity
forms, the
Commissioner found that no evidence was led by SAPS to show what the
rule was in that regard; how employees were made
aware of the rules;
and how those rules were enforced. Since Skepe had himself given the
very same member of the public a lift
after the accident and took him
to Hoza’s residence at the police station without completing
the indemnity form, there was
no basis for the charge.
[16] In regards to
whether Hoza had the required permission to use the vehicle, the
Commissioner effectively accepted Hlwempu’s
evidence that no
rhino poaching operation was planned for the period in question, and
that Hoza had no authority to use the state
vehicle. In considering
whether the sanction of dismissal was appropriate, the Commissioner
took into account whether SAPS had
applied discipline consistently in
the light of the evidence of Colonel Sayed-Cassim, who had presided
over another enquiry involving
similar transgressions against another
employee, Menze. In the latter case, Menze, despite driving a state
vehicle whilst under
the influence of alcohol, and causing damage to
a state vehicle, was issued with a sanction of a fine of R1 400
for five of
the charges, and suspended dismissal.
[17] The
Commissioner took into account that SAPS had argued that the two
cases were distinguishable on the basis that Menze had
pleaded guilty
and shown remorse. The Commissioner was nonetheless not convinced by
SAPS’ arguments, and found that given
the cumulative effect of
guilt findings on the six charges, the totality of the evidence, and
Hoza’s clean record, the sanction
of dismissal was not
appropriate. Furthermore, the Commissioner reasoned that since Hoza’s
former Commander had moved to
another police station, there was an
opportunity for the trust relationship between SAPS and Hoza to be
rebuilt. To that end, Hoza
was to be reinstated at any station of
SAPS’ choosing. Further in the light of Hoza’s ‘unclean
hands’,
minimal back-pay was to be ordered to enable him to
‘ready himself to take up his posting and attend work’.
[18] As a parting
shot, the Commissioner commented that the ‘incident should
serve as a lesson and deterrent to Hoza and others
on the forms and
levels of what should be acceptable conduct in the workplace.’
The grounds of
review and evaluation:
[19] SAPS seeks to
have the award reviewed on a variety of grounds, central of which is
that the Commissioner misdirected herself
in regards to the
appropriateness of the sanction, failed to afford the parties a fair
trial, made contradictory findings, did
not fully determine the
matter, and failed to resolve disputed facts.
[20] The test on
review has been re-hashed in this Court and the Labour Appeal Court.
In simple terms, an arbitration award
is reviewable if the
impugned decision reached by the Commissioner is one that
no other reasonable decision maker could
have reached in the light of
the material placed before him or her
[1]
.
Furthermore, it is now trite that if the Commissioner misconstrues
the nature of the inquiry and that has an impact on the outcome
of
the arbitration, this would constitute a reviewable irregularity.
[21] I have had
regard to the submissions made on behalf of the parties, the record,
and the pleadings, and I have no hesitation
in concluding that the
Commissioner misconstrued the nature of the enquiry, which ultimately
had an impact on the outcome of the
arbitration, thus constituting a
reviewable outcome. It follows that the award cannot by any stretch
of imagination be sustainable
based on the following observations and
conclusions;
21.1 Once the
Commissioner had accepted Hlwempu’s version that there
was no rhino poaching or other operations sanctioned
for the weekend,
and further that Hoza had no authority to use the vehicle, in my
view, that should have been the end of the matter,
because everything
else and the ancillary charges flowed from that primary misconduct.
21.2 The question
therefore was whether a sanction of dismissal was appropriate in
circumstances where the primary offence (i.e.,
unauthorised use of
state vehicle) was established by SAPS. Before the Commissioner were
the following facts;
a) Hoza had without
authority, taken a vehicle for his own private use, with a conjured
excuse that he was in pursuit of a suspect
in an operation that was
not sanctioned, or alternatively, that he was going to be involved in
an operation, which his station
commander had no knowledge of.
b) In the course of
utilising the vehicle, he had without authority and contrary to SAPS’
rules, picked up a member of the
public. The fact that Skepe removed
that member of the public from the accident scene in a state vehicle
cannot be equated with
Hoza’s conduct of picking up that
individual on the way, which effectively was in perpetuation of his
initial misconduct
of taking the vehicle without permission.
c) The finding by
the Commissioner that Hoza could not have known of the rules
regarding the picking up of members of the public
on the road whilst
utilising state vehicles, or that no such evidence was produced, or
that it was not known how these rules were
made known or enforced to
employees is indeed extraordinary.
d) Surely members of
the SAPS cannot be allowed to willy-nilly use state assets as
‘charity taxis’ to pick up members
of the public on the
road especially when they are on duty. It does not need rules for
police officers to know that they cannot
use state vehicles for
unofficial purposes, including giving strangers a lift when they are
not in any discernible danger. Those
vehicles are meant for a
specific purpose, i.e. to enable officers to carry out their official
duties.
e) It needs to be
stated in this case that one of the reasons that Hlwempu as station
commissioner was concerned with Hoza’s
conduct was that it had
amongst other things, impacted on the police station’s quest to
contain its fuel budget. The concern
however does not end there. It
is worth repeating that it is completely unacceptable for police
officers or public servants for
that matter to use and abuse state
assets as if they were their own personal properties. It is the
hapless tax payer that is continually
burdened by the costs of such
abuse, whilst at the same time not getting value for money. That
culture of impunity can only be
countenanced by misguided
reinstatement orders such as in this case, with a meaningless message
that offenders have learnt their
lessons from their misconduct. This
approach can neither be correct nor reasonable.
f) Having used a
state vehicle without authority and thereafter picking a member of
the public, Hoza was then involved in an accident,
thus causing
damage to the vehicle which had overturned. Whether the accident or
the damage to the vehicle was as a consequence
of wilfulness or
negligence on his part is of no relevance. The fact remains that he
had no authority in the first place to use
the vehicle.
g) The
Commissioner’s justification for reinstating Hoza is equally
unsustainable. The mere fact that Menze got a lighter
sanction does
not imply that equal mercy should have been shown to Hoza. There were
no objective facts placed before the Commissioner
for her to justify
why she had rejected SAPS’ contentions that the two cases were
distinguishable, as Menze had owned up
and shown remorse for his
misdemeanours. On the contrary, Hoza had refused to own up, had
concocted an implausible version to cover
up his gross misconduct,
and there was no evidence that he had shown any form of contrition
for his conduct. If anything, his concocted
version of events coupled
with the dire consequences of his misconduct served as aggravating
factors.
h) It is further not
for a Commissioner to conclude that a trust relationship is
redeemable simply because a superior that a dismissed
employee had
initially reported to was moved to another department or station. A
trust relationship is between an employer and
an employee, and not
between an employee and his/or her supervisor.
i) If the nature of
the misconduct is so gross as in this case, it does not even require
any evidence that a trust relationship
is broken down or not, as it
cannot be expected of an employer to retain a delinquent employee in
its employ. That breakdown in
a trust relationship naturally flows
from the gross nature of the misconduct itself
[2]
j) The Commissioner
correctly pointed out that acceptable levels of conduct are expected
of police officers. Police officers as
their title indicates, are
there to uphold and enforce the laws of the land and to ensure that
citizens generally abide by those
laws. If police officers themselves
disobey laws by using state assets at their will, how it is possible
that they can be said
to be setting good examples for ordinary
citizens.
[22] It therefore
follows from the above that the contentions made on behalf of Hoza in
opposing this application are without merit.
It is correct that a
Commissioner can only consider the reasons that led to a dismissal.
This is what the provisions of section
188(2) of the LRA dictates. In
this case, the chairperson of the enquiry had
inter alia
recorded that Hoza’s Commander had not given him permission to
book out the vehicle. The Commissioner equally made that finding.
As
already indicated, that should have been the end of the enquiry as
other charges flowed from that initial conduct. How it can
be said
that the Commissioner’s conclusions on sanction are sound and
reasonable given the overall considerations and circumstances
of this
case is beyond comprehension. In the end, the Commissioner’s
decision does not fall within a band of reasonableness.
[23] In the light of
the material placed before the Court and the conclusions reached in
this judgment, it follows that no purpose
would be served by
remitting this matter back to the SSSBC, and the Court is well placed
to substitute the Commissioner’s
award with its own order.
[24] I have further
had regard to the requirements of law and fairness in considering
costs, and even though I am of the view that
the defence of the award
was misplaced, an order of costs would be unwarranted. Accordingly,
the following order is made;
Order:
1. The late filing
of the review application is condoned.
2. The arbitration
award issued by the fourth respondent under case number PSS6692-14/15
dated 16 November 2016 is reviewed,
set aside and
substituted with an order that;
‘The dismissal
of Mr Mzilowo Maxwell Hoza was fair’
3. There is no
order as to costs.
E.
Tlhotlhalemaje
Judge of
the Labour Court of South Africa
Appearances:
For the
Applicant:
M
Thys
Instructed
by:
State Attorney, Hanli Glanvill
For the
First Respondent:
M Grobler
Instructed
by:
Schoeman Oosthuizen Inc
[1]
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC);
Gold Fields Mining SA (Pty) Ltd v CCMA
and Other
[2014] 1 BLLR 20 (LAC)
[2]
Impala Platinum Ltd v Jansen & Others
(2017)
38
ILJ
896 (LAC).