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[2019] ZALCJHB 9
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Buthelezi and Another v Safety and Security Bargaining Council and Others (JR609/15) [2019] ZALCJHB 9 (22 January 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 609.15
In
the matter between:
MJ
BUTHELEZI AND 1
OTHER Applicants
and
THE
SAFETY AND SECURITY BARGAINING
COUNCIL First
Respondent
F.J.
VAN DER MERVE
N.O. Second
Respondent
SOUTH
AFRICAN POLICE
SERVES Third
Respondent
THE
MINISTER OF
POLICE Fourth
Respondent
Date
heard: 15 November 2018
Delivered:
22 January 2019
JUDGMENT
RABKIN-NAICKER,
J
[1] This is an opposed application to
review an arbitration Award issued by the second respondent (the
Arbitrator). In terms of
the Award, the arbitrator found the
dismissal of the applicants to have been procedurally and
substantively fair on the basis that
the respondent’s (SAPS)
version should prevail on a balance of probabilities.
[2] The applicants worked as policemen
at the Boksburg North police station. They were called to a
disciplinary enquiry to face
allegations of committing a common law
or statutory offence namely: extortion, alternatively contravening
the Act by acting contrary
to the objects of the SAPS, when they
allegedly on 14 November 2011 attempted to extort R2000,00 from Mr W
Harmse in the Boksburg
North Area.
[3] The evidence of Mr Harmse was
recorded as follows in the Award:
“
Harmse
said on 14 November 2011 he had arrived early at a business called
Ábeddac’ in Boksburg North where he was to
sell
nonferrous metals. A police vehicle stopped behind him and 2 officers
approached him. They introduced themselves and asked
about what he
had on the vehicle. They asked him about copper and he showed them.
They asked for paperwork for the copper which
he said he did not have
at the time but said he could get. The one was the first applicant,
Buthelezi, and the other was the second
applicant but he could not
remember the name. He identified them as persons present at the
hearing. They said they did not have
time to waste and asked for
R2000,00. There was no valid reason to ask this and he had nothing
illegal with him. Because they said
they were in a hurry, they
exchanged telephone numbers to meet later and exchange the money. The
witness had no intention of giving
them the money, but wanted to get
rid of them. Buthelezi gave him his cell number which he saved on his
phone. There were subsequent
cell phone discussions and also calls
from a police landline between the parties. The applicant (sic) tried
to stall them by saying
he had to cash a cheque, later saying that he
had to have the cheque replaced. On 25 November 2011 he was again at
Abeddac to deliver
metals…… The applicants stopped
behind him again, this time in civilian clothes, Buthelezi driving a
blue BMW and
the other a green Golf. Buthelezi said to him ‘you
can run but not hide’. They asked him whether he had copper and
when he said yes, they took him to the police station and arrested
him for possession of suspected stolen goods, He was taken to
court
and the charges were withdrawn against him the same day. On 30
November 2011, the same two stopped behind him at Abeddac
and asked
him about copper, which he did not have. He showed them the paperwork
he had and they left. They targeted him specifically
and he did not
know why. These incidents were reported and the witness gave a
statement. He said he had met them for the first
time on 14 November
2011 and he remembered Buthelezi’s name because it was similar
to that of a well-known politician. He
admitted making a mistake
concerning the second applicant’s name at the time, but
confirmed that the applicant’s face
was the correct one. He
denied he made jokes with with the second applicant, that they
discussed crime statistics, that he asked
for an escort, and that
they had a rifle with them. The witness had a colleague present on 14
and 15 November 2011, but he has
subsequently died. He had been to
these particular business premises on many occasions. He received
copper back on 8 May 2012,
which weighed less and were of a lesser
quality. He then laid a complaint.”
[4] It is necessary to consider and
record the summarized version of Buthelezi’s evidence contained
in paragraph 15 of the
Award. It reads:
“
Buthelezi
said that on 14 November 2011 they were patrolling, attending to
complaints and doing stop and search. They saw a lot
of cars at
Abeddac. Part of their task was to search those cars, because
sometimes they had stolen items in them. They met Harmse
who gave
them permission to search his bakkie. He was very friendly. When he
saw a firearm with them, he asked about crime in the
area. During the
discussion he asked to be escorted because once he had heard about
bank followings and robberies. They said it
was in order if he gave
them a call, and they gave him their details. He gave them his
business card. Later Harmse phoned and said
he was finished and going
to the bank, where they would meet. They were dealing with a docket
and phoned Harmse on their way to
the bank. He did not answer. They
were worried that something might have happened to him. Back at the
station they told a warrant
officer about it who said they needed not
to put it in the OB. They also tried to phone Harmse from the
landline in the office.
They tried another number and somebody said
that they could also not contact Harmse. About 2 weeks later on 25
November 2011 he
came off from nightshift and in his uniform and on
the way a member of the public approached him and said he saw a
suspicious car
loading bags. The witness told Ziquba about this
information and they decided to investigate in their private cars
because they
could just go their separate ways thereafter and drive
home. They found Harmse who said his phone had died. He said they
could
search his bakkie and they saw fresh copper. They took Harmse
to the station where the copper was off loaded, put into the SAP13,
a
statement was made, and Harmse was arrested. A case was opened
against Harmse. A gentleman from Telkom came to identify the copper.
On 13 November 2011 they did not see Harmse. They never demanded
money from him.”
[5] The record before the arbitrator
contains the sworn statement of Harmse made on the 14 December 2011,
which reads in material
part as follows:
“
Op
14/11/2011 om 7:00 was ek te Abeddac 15 Laan Boksburg Noord met my
bakkie en gewag vir Abedda om oop te maak. Terwul ek gewag
het het ‘n
Polisie Double Cab Bakkie agter my gestop. Daar het twee SAPD
in uniform gekleede lede my genader
en hulle self aan my
voorgestel as Kst Buthelezi en kst Khoza. Ek is nie seker oor die
range maar is seker oor die name.
2
Beide
wou weet wat ek op die bakkie gehad het. Ek het hulle meegedeel dat
daar scrap metal, allumunium en koper op gehad het. Beide
het toe my
versoek om die papier werk vir die koper aan hulle te toon. Ek het
hulle toe meegedeel dat hulle moet wag tot Abeddac
oop maak dank an
ek die papier wek aan hulle verskaf aangesien alles deur gefaks is
aan hulle. Die twee polisie beamptes het toe
gese sat hulle nie
solank kan wag nie en wou weet of ek iets vir hulle het. Ek het hulle
gevra wat hulle soek waarop hulle twee
duisend rand gesoek het.
3
Ek
het vir beide Buthelezi en Khoza meegedeel dat ek nie enige
geld aan my het nie eers vir hulle kan gee sodra ek deur Abeddac
betaal is. Beide wou weet hoe ek hulle gaan betaal. Ek het toe gese
date k eers kan betaal sodra ek die geld ontvang het. Albei
Buthelezi
en Khoza het toe hulle selfoon nommers vir my gegee en het my
besigheids kaartjie gesoek wat ek toe vir hulle gegee het.
4
Nadat
ek die skroot metal verkoop het en die tjek vir die die genoemde
items ontvang het, het ek die tjek te Standard bank in Atlas
weg
Dunswart gewissel.
5
Om
10:16 het ek ‘n oproep van selfoon nommer 0721948906 ontvang.
Die person wat gepraat het wou weet of ek al die geld gekry
het en
wanneer gaan ek hulle betaal. Ek het hulle meegedeel date k die tjek
gekry het en moet wissel te Standard bank in Noordrand
weg Boksburg
en date k hulle daar sal kry. Ek het vir hulle gejok aangesien ek toe
reeds die tjek gewissel het te Atlas weg en
geen intensies gehad het
o die S.A.P.S lede enige gelde te betaal nie.
6
Om
11:16 en toe wee rom 11:28 het dieselfde selfoon nommer 07219489066
my geskakel wat ek nie geantwoord het nie. Ek het die selfoon
nommer
op my selfoon gestoor onder onder Cob/B. Ek het gemerk dat die
S.A.P.D voertuig staan te Craig en Turf weg Anderbolt en
15 de Laan
dop hou en het gewag tot heller y voor ek verder gery het. Was bang
hulle merk my op en trek my af. Ongeveer 11:30 het
die S.A.P.D
voertuig gery, waarna e kook gery het.
7
Om
11:36 het ek weer ‘n oproep ontvang van tel nommer 011 8983000.
Dit was weer een van die S.A.P.D led Ek weet nie of Khozo
of
Buthelezi gepraat het nie. Hulle wou weet waar ek was en hut hulle
R2000.00 gesoek. Ek het toe geantwoord dat daar ‘n
fout met die
tjek was. Die handtekeninge was nie reg en date k weer moet terug
gaan om die tjek te herstel. Om 12:32 het hulle
my weer geskakel
wanaf tel no 0118983000. Ek het toe nie die oproep geantwoord nie.
[6] The third respondent’s
evidence at the arbitration was presented by the Station Commander
who was also a crime investigator
at the material time.. The evidence
is succinctly summarized in the Award as follows:
“
Van
Nieuwenhuizen at the time was the station commander of the Boksburg
North police station. The 2 applicant constables worked
at his
station in the Delta relief, doing CSC duties or patrols on
complaints and crime prevention. The applicants were neither
trained
nor experts in secondhand goods inspection. There was no
investigation into or specific emphasis on Abbeddac. Harmse came
to
him during December 2011 and laid a complaint about the 2 applicants
victimizing and harassing him, and wanting R2000,00 from
him. The
witness explained what Harmse had told him The witness did an
investigation into vehicle movements and times etc. and
found
corroboration for Harmse’s allegation. It was known that the
applicants drove a blue BMW and green Golf respectively.
At the time
of arresting Harmse they had been off duty. The station commander
should be advised when any of his officers were on
duty in plain
clothes. Although Harmse was arrested, the State declined to
prosecute him. The witness believed that the arrest
had been improper
with improper motives. He investigated the matter and opened a
disciplinary following case against the applicants.
Fourie
worked at the station in crime information. He was trained on
computers/tracking records of police vehicles. At the request
of the
station commander he did an investigation into movements of the
applicants’ vehicles on specific dates and he plotted
certain
maps. At one point the applicants moved close to a bank, outside of
their sector. As far as he was aware the tracking system
was accurate
and showed the street and vicinity of the movement.”
[7] The bank that the police car
travelled close to, as reflected in the record before the arbitrator,
was Standard Bank at 15 North
Rand Road, Jansen Park. This was
outside of the sector the applicants were required to patrol. It is
also the bank which Harmse
told them he would be visiting to deposit
his cheque, according to his statement above.
[8] The applicants submit that the
Arbitrator misconstrued the evidence before him and disregarded
relevant material evidence placed
before him which led to an
unreasonable result. It is the applicants’ case that the
Arbitrator
inter alia
:
8.1 Made a mistake in conflating the
evidence of the incidents of 14 and 25 November 2011;
8.2 Ignored the fact that Harmse was
not certain about the time of the alleged extortion attempt;
8.3 Did not apply his mind to the
evidence that the applicants were in the vicinity of Abeddac because
that is their work area but
not at 15
th
avenue as per
Harmse’s allegation;
8.4 Failed to take into account that
Harmse only reported the alleged extortion after he was arrested and
the case dismissed;
8.5 Failed to take into account that
he wanted to be seen as the victim in order to avoid arrest;
8.6 Did not take into account the
evidence presented that Harmse had an extensive criminal record. This
evidence was introduced
after the ‘third respondent’s
case had been closed.
[9]
I disagree with the submission that the manner that the arbitrator
dealt with the evidence before him has made the Award susceptible
to
review. Having considered the record before the Arbitrator, I do not
find that he misconceived the nature of the inquiry or
arrived at an
unreasonable result. The dictum in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[1]
where
the SCA held the following, is apposite:
“…
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.”
[10] The Arbitrator’s central
task was to consider the versions relating to the charge of alleged
extortion. Buthelezi’s
own version that the exchange of
telephone numbers, and the attempts at calling Harmse were in order
to provide an escort for Harmse
from his bank on 14 November 2011,
because he and his colleague were worried for Harmse’s safety
after he had cashed his
cheque, is highly implausible. Buthelezi did
not call as a witness, the warrant officer he claimed he had told
about the incident
and who advised him that the incident could
not be put in the OB. There was no corroboration of Buthelezi’s
version
for the material day in question i.e. 14 November 2011.
His fellow constable remained silent throughout the arbitration and
the preceding disciplinary hearing. The record reflects that his
alleged basis for doing this was that he would give the same evidence
as Buthelezi. The applicants did not inform any of their superiors
that a member of the public had requested them to escort him
to N12
which was outside of their patrol area.
[11] The oral and documentary evidence
presented by the SAPS witnesses, evident from the record before the
Arbitrator, corroborated
Harmse’s statement that he gave to the
SAPS, as reflected above. I emphasise in particular, the tracking of
the applicants’
car at the Standard Bank in question. It is the
evidence pertaining to 14 November 2011 that was key to the decision
at the arbitration.
The result of the Award, taking into
consideration the versions before the Arbitrator, is well within the
bounds of reasonableness.
Costs
[12]
In as far as costs are concerned, given that the applicants are
individuals who approached this Court to challenge an Award
in terms
of the Labour Relations Act
[2]
(LRA), I do not consider it apposite to order that costs should
follow the result. I make the following order:
Order
1.
The
review application is dismissed.
_________________
H. Rabkin-Naicker
Judge of the Labour Court of South
Africa
Appearances:
Fort the Applicants: MV Bayi Attorneys
For the Respondent: T. Molokomme
Instructed by: The State Attorney
[1]
2013 (6) SA 224
(SCA) at para 25.
[2]
Act 66 of 1995 as
amended.