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[2019] ZALCJHB 70
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Police and Prisons Civil Rights Union obo Myeni and Another v Safety and Security Sectoral Bargaining Council and Others (JR1075/16) [2019] ZALCJHB 70 (3 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
No: JR1075/16
In
the matter between:
POLICE AND PRISONS
CIVIL RIGHTS UNION
OBO
MYENI AND NKOSI
Applicant
and
SAFETY AND SECURITY
SECTORAL First
Respondent
BARGAINING
COUNCIL
COMMISSIONER
DENGA MULIMA N.O.
Second Respondent
DEPARTMENT
OF POLICE
Third
Respondent
THE NATIONAL
COMMISSIONER
Fourth Respondent
SOUTH
AFRICAN POLICE SERVICE
Heard:
17 January 2019
Delivered:
03 April 2019
JUDGMENT
SCHENSEMA,
AJ
Introduction
[1]
This is an opposed review application, brought in terms of section
145 of the Labour
Relations Act
[1]
(the
LRA), in which the applicants seek an order to review and set aside
the award of the second respondent (the Commissioner),
who, acting
under the auspices of the first respondent, the Safety and Security
Sectoral Bargaining Council (the SSSBC), he held
that the applicants'
dismissal was substantively fair.
Factual
background
[2]
I do not intend to repeat the evidence in great detail, it is
sufficient for present
purposes to record that the applicants were
employed by the third respondent as policemen with the rank of
warrant officer and
sergeant. The applicants were both charged with
six counts of misconduct, namely Regulation 20 (z) by committing a
common law or
statutory offence of corruption or being an accomplice
thereto.
[3]
The applicants were further charged with defeating the ends of
justice in that despite
the knowledge of the unlawful possession of
vehicles, the applicants failed to take legal action and bribery.
Additional charges
relating to Regulation 20 (q) by failing to take
steps to confiscate the unlawfully possessed vehicles and Regulation
20 (p) by
conducting themselves in an unacceptable, disgraceful and
improper manner by failing to take action against Mr Kriek and by
encouraging
him to sell an unlawfully possessed vehicle to avoid
being caught, were also imposed. They were both subsequently found
guilty
and dismissed.
[4]
The applicants lodged an appeal which appeal was unsuccessful and
aggrieved with the
outcome thereof, the applicants referred an unfair
dismissal dispute to the SSSBC.
Proceedings
at the SSSBC
[5]
Evidence in the form of documentary evidence and witnesses were
submitted to the Commissioner.
In support of its case the respondent
relied upon the evidence of Messrs Kriek, DJ Smith, A Van der
Westhuizen, G Molobye, E Liebenberg
and D Kanti. The applicants did
not call any witnesses in support of their defence.
[6]
In summary Kriek testified that he sells cars with his fiancé
Van der Westhuizen.
On 19 August 2010, Kriek received a telephone
call from Sergeant Takalo instructing him to return to his plot in
Honeydew. Upon
arrival, Kriek found five people who all introduced
themselves as police officers. The police officers were inspecting
vehicles
at the plot and he was ultimately accused of selling stolen
motor vehicles.
[7]
Despite denying selling stolen motor vehicles, Kriek was prepared
after he had been
approached by policeman to make payment of R100
000.00. Kriek together with a policeman drove to the bank and
withdrew the R100
000.00, which money was subsequently handed over.
Sergeant Takalo subsequently advised Kriek that he would be
confiscating one
of the motor vehicles in order to demonstrate to his
commanding officer that work had been performed and it was further
agreed
that Kriek could collect the motor vehicle seven days later.
[8]
Sometime later, Kriek was requested to attend at Sergeant Takalo's
offices to collect
the motor vehicle and was once again requested to
make payment of an additional R10 000.00 in order to ensure his
safety. Payment
was subsequently made. A few months later, Kriek was
contacted by Warrant Officer Botha who advised him that one of his
motor vehicles
had been impounded and that he was to come to the
police station. Whilst there, Sergeant Takalo once again demanded an
amount of
R25 000.00 in order to arrange for the disappearance of the
case. Kriek refused and left.
[9]
In January 2011, Captain Liebenberg came to Kriek's home, however
Kriek evaded Captain
Liebenberg by running away as he feared that
Sergeant Takalo had returned. Van der Westhuizen subsequently
informed Liebenberg
of the events that had taken place at the plot
which resulted in an identity parade and the applicants subsequently
being charged.
[10]
In response to the respondent's evidence, Mr Myeni testified that on
19 August 2010, Sergeant
Takalo had requested his assistance in
tracing suspected stolen motor vehicles at a plot in Honeydew. Whilst
inspecting the motor
vehicles, Kriek arrived and he was requested to
provide the documentation relating to the motor vehicles. As a result
thereof,
Kriek left the plot alone to collect the keys and papers.
Upon Kriek's return the police opened the remaining motor vehicles
and
calls were made to Mr Molobye to certify whether the cars had
been stolen.
[11]
Upon conclusion of their inspection, the police left the plot with
one of the motor vehicles
a Mazda Soho. Myeni further disputed the
evidence of the respondent's witnesses.
[12]
Mr Nkosi testified that prior to his dismissal he was working at the
Soweto K-9 unit. Nkosi further
denied being present at the plot and
further denied ever having used the cell phone with number 073 695
0167. Nkosi further
argued that someone had used his ID number
fraudulently.
The
Commissioner's reasons
[13]
The Commissioner in his arbitration award inter alia held that the
applicants' evidence in many
instances defied logic, was incoherent
and unbelievable. The Commissioner based the aforementioned on the
following:
13.1
The applicants never disputed the submissions made by Kriek and van
der Westhuizen that she had driven to
the plot in a Toyota Hilux;
13.2
They further did not dispute that upon Kriek's arrival, some of the
motor vehicles had already been opened
by the policemen;
13.3
The applicants claimed that some of the motor vehicles confiscated by
Captain Liebenberg are not the same
motor vehicles that they had
inspected, however failed to prove this aspect;
13.4
The applicants further did not deny that they had refused to identify
themselves when asked by van der Westhuizen
to do so;
13.5
The applicants further did not deny having contacted Mr Molobye;
13.6 Mr
Myeni was of the view that Kriek could have gone to the bank whilst
collecting the papers and keys, which
in the Commissioner's reasoning
was improbable given the time it took for Kriek to withdraw the
monies from the bank;
13.7
The applicants did not dispute the version of Captain Liebenberg; and
13.8
the failure by Mr Nkosi to have challenged the evidence submitted by
MTN in which MTN had confirmed that
the cell phone with number 073
695 0167 had been present at the plot.
[14]
The Commissioner further reasoned that he was of
the view that the version of Kriek and van der Westhuizen
was more
probable in that were Kriek not escorted by the police to collect the
papers and motor vehicle keys that he would in all
likelihood have
absconded. The Commissioner further submitted reasons as to why he
accepted the version of the respondent's witnesses
and not that of
the applicants.
[15]
In conclusion the Commissioner held that the disciplinary findings
were correct and that the
sanction of dismissal was appropriate.
The
Review Application
[16]
Upon receipt of the arbitration award, the applicants filed a review
application in which the
applicant inter alia raised that the
Commissioner had committed misconduct in relation to the duties of
the commissioner as an
arbitrator. The Commissioner had further
committed a gross irregularity in the conduct of the arbitration
proceedings and that
he had exceeded his powers.
[17]
The essence of the applicants' review application is based on the
fact that Myeni had not participated
in the various acts of
misconduct, however it has been conceded that Myeni was present at
the scene on 19 August 2010. Nkosi denies
ever having been present at
the scene, but fails to provide supporting evidence to corroborate
this version.
[18]
The applicants have further submitted that the Commissioner had
failed to consider the material
contradictions particularly in
respect of who had accompanied Kriek to collect the motor vehicle
keys and papers. The applicants
further disputed the motor vehicle
that had been used by Kriek to go to the bank. The applicants are of
the view that these contradictions
ought to have "raised the
commissioner's eyebrows as they are demonstrative of a rehearsed
version gone wrong." The applicants
are further of the view that
the Commissioner had erred in accepting an improbable version in
respect of the identity parade and
Kriek and van der Westhuizen's
failure to identify all persons present on 19 August 2010.
[19]
The applicants were further of the view that the Commissioner had
ignored relevant and material
evidence in that on 19 August 2010,
Nkosi was no longer using the cell phone with number 073 695 0167. In
conclusion the applicants
are of the view that the Commissioner had
exceeded his powers in that he had actively assisted the respondent's
case by recalling
Captain Liebenberg.
[20]
In opposition to the aforementioned, the respondent inter alia had
submitted that in respect
of Myeni, the evidence demonstrates that
Myeni had requested Mr Molobye to establish the status of the motor
vehicles, that an
amount of R100 000.00 had been withdrawn and that
Kriek had never been arrested for being in possession of stolen motor
vehicles.
[21]
In respect of Nkosi, his presence at the plot had been confirmed
through his cell phone. Furthermore,
that the cell phone had been
registered in his name at the dog unit where he was stationed and
that the number had also been RICA'd
in his name.
[22]
The respondent in conclusion submitted that no basis had been
established for the reviewing and
setting aside of the arbitration
award as the applicants have failed to demonstrate any irregularity
worthy of consideration within
the context of the authorities that
are cited in the Heads of Argument.
Analysis
[23]
Section 145 of the LRA provides as follows –
"145 Review of
arbitration awards:
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the
auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award:
…
..
(2)
A defect referred to in subsection (1), means:
(a)
that the Commissioner;
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the conduct the arbitration
proceedings; or
(iii)
exceeded the commissioner's powers.”
[24]
The general principle is that a gross irregularity should concern the
conduct of the proceedings
rather than the merits of the decision.
[2]
When
a commissioner fails to have regard to material facts, this may
constitute a gross irregularity in the conduct of the
arbitration
proceedings because the commissioner may have unreasonably failed to
perform his or her mandate and thereby prevented
the aggrieved party
from having his/her case fully and fairly determined.
[3]
A
review of a Commission for Conciliation, Mediation and Arbitration
(CCMA) award is permissible if the defect in the proceedings
falls
within one of the grounds in section 145(2)(a) of the LRA.
[25]
For a defect in the conduct of the proceedings to amount to a gross
irregularity, as contemplated
in section 145(2)(a)(ii), the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result.
The 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.
[4]
[26]
Material areas 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, and are only of any consequence if
their effect is to render
the outcome unreasonable.
[5]
[27]
My analysis commences with a review of the record and the evidence
that was submitted during
the arbitration proceedings. In my view
what is of significance are the common cause facts. There is no
dispute that there was
a visit to the plot on 19 August 2010, that
Myeni was the driver of the motor vehicle that was used to go to the
plot. That Kriek
was in the business of selling motor vehicles and
that the purpose of the inspection was to ascertain whether or not
the motor
vehicles were stolen. Furthermore, that R100 000.00 had
been withdrawn by Kriek during the time that the inspection was
taking
place and that Myeni had made contact with Mr Molobye. There
is further no dispute that the applicants were not identified by
Kriek
and van der Westhuizen during the identity parade and the cell
phone number of Nkosi was also present at the plot, as verified by
MTN.
[28]
It is trite that the position regarding the review of awards is that
a review is permissible
if the defect of the proceedings falls within
one of the grounds as set out in s145 of the LRA. As stated in the
matter of
Herholdt
v Nedbank Ltd
[6]
:
"For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s145(2)(a)(ii), the arbitrator
must
have misconceived the nature of the enquiry or arrived at an
unreasonable result. 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 the attached 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."
[29]
In considering the review submissions by the applicants, I am of the
view that the applicants'
reasons to have the arbitration award
reviewed are not supported by the record or the documentary evidence
submitted during the
arbitration proceedings.
[30]
The applicants have inter alia attempted to rely on the fact that the
Commissioner recalled Captain
Liebenberg as one of the reasons for
the review. In this regard, I have been referred by counsel for the
respondent to the case
of
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[7]
in
which the Labour Appeal Court, held that:
"The
fact that an arbitrator committed a process-related irregularity is
not in itself a sufficient ground for interference
by the reviewing
court. The fact that an arbitrator commits a process-related
irregularity does not mean that the decision reached
is necessarily
one that a reasonable commissioner in the place of the arbitrator
could not reach.
In
a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by the arbitrator
to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside the award. This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must necessarily consider the totality of
the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker could make.
To do
it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in section
138 of the LRA which requires the arbitrator to deal with the
substantial merits of the dispute between the parties with the
minimum
of legal formalities and do so expeditiously and fairly. This
is also confirmed in the decision of CUSA v Tao Ying Metal
Industries.
[8]
Failing
to consider a gross irregularity in the above context would mean that
an award is open to be set aside where an arbitrator
(i) fails to
mention a material fact in his award; or (ii) fails to deal in
his/her award in some way with an issue which has some
material
bearing on the issue in dispute; and/or (iii) commits an error in
respect of the evaluation or considerations of facts
presented at the
arbitration. The questions to ask are these: (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 could reasonably have arrived at based on the
evidence?”
[9]
[31]
In considering the aforementioned cases in relation to this matter, I
am of the view that the
Commissioner provided both parties an
opportunity to have their say in respect of the dispute. The
Commissioner has further identified
the dispute he was required to
arbitrate and further that he understood the nature of the dispute.
Furthermore the arbitration
award clearly deals with the substantial
merits of the dispute and his decision is therefore reasonable and
one that could be reached
by another decision maker based on the
evidence before him or her.
[32]
I am further in agreement with Counsel's submissions that the
applicants suffered no prejudice
in respect of the recalling of
Captain Liebenberg and that it is within the powers of a commissioner
to conduct the proceedings
in whatever way he deems appropriate,
provided that such process is fair and reasonable. Given the
questions raised in relation
to the registration numbers of the motor
vehicles, this aspect required clarification in that the applicants
had identified different
motor vehicles on the day.
[33]
With reference to the remaining review grounds, I am of the view that
the applicants have failed
to demonstrate that the decision of the
Commissioner is not a reasonable one. As aforementioned, of
significance are the common
cause facts and the impact this has had
on the arbitration proceedings as a whole. The Commissioner clearly
in terms of his arbitration
award has clearly considered all of the
evidence that was presented to him and in so doing has not
misconceived the issues in that
the result is not an unreasonable
one.
[34]
The Commissioner further assessed the evidence and
the credibility of the witnesses and found that the respondents'
witnesses' versions were more probable. This is what the Commissioner
was required to do. Therefore in conclusion I am of the view
that the
Commissioner in approaching the evidence in such a manner clearly
arrived at a decision which was reasonable.
[35]
In regards to costs, even though I am of the view that this review
application was ill-considered,
upon a consideration of the
requirements of law and fairness, I am of the view that each party
must be burdened with its own costs.
[36]
In the premises, I make the following order:
Order
1.
The applicants' review application is dismissed;
2.
Each party is to pay its own costs.
________________________
H.
Schensema
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
T Majang from Majang Inc. Attorneys
For
the Respondent: S B Nhlapo
Instructed
by:
State
Attorney, Johannesburg
[1]
Labour
Relations Act 66 of 1995
.
[2]
Herholdt
v Nedbank Limited (COSATU as Amicus Curiae)
2013
(6) SA 224
(SCA) at para 10.
[3]
Id
fn 2 at para 16.
[4]
Id
fn 2 at para 25.
[5]
Id
fn 2
[6]
[2013]
6
SA
224
(SCA) at para 25.
[7]
[2014]
35
ILJ
943 LAC.
[8]
[2008]
ZACC
15
;
2009 (2) SA 204
CC
at
paragraphs 64 and 65 where the court held that: ‘…
commissioners
are required to “deal with the substantial merits of the
dispute with the minimum of legal formalities.”
This requires
commissioners to deal with the substance of a dispute between the
parties. They must cut through all the claims
and counter-claims and
reach for the real dispute between the parties. In order to perform
this task effectively, arbitrators
must be allowed a significant
measure of latitude in the performance of their functions. Thus the
LRA permits commissioners to
“conduct the arbitration in a
manner that the commissioner considers appropriate”. But in
doing so, commissioners
must be guided by at least three
considerations. The first is that they must resolve the real dispute
between the parties. Second,
they must do so expeditiously. And, in
resolving the labour dispute, they must act fairly to all the
parties as the LRA enjoins
them to do. An arbitrator 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.’
[9]
Id
fn 7 at paras 17 to 20.