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[2019] ZALCJHB 244
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POPCRU obo Makhetle v Safety and Security Sectoral Bargaining Council and Others (JR1235/16) [2019] ZALCJHB 244; (2020) 41 ILJ 265 (LC) (18 September 2019)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JR 1235/16
In the matter between:
POPCRU OBO TEBOGO
MAKHETLE
Applicant
and
SAFETY AND SECURITY
SECTORAL
BARGAINING
COUNCIL
First
Respondent
MAREE
N.O
Second Respondent
SOUTH AFRICAN POLICE
SERVICE Third
Respondent
NATIONAL COMMISSIONER
OF THE
SOUTH AFRICAN POLICE
SERVICE Fourth
Respondent
Heard:
5 September 2019
Delivered:
18 September 2019
Summary:
Review application – charges of receipt and possession of
stolen property in terms of common
law and sections 36 and 37 of
General Law Amendment Act 62 of 1955 – failure to
put a version to the employer’s witness is fatal – when a
suspect
denies possession, he cannot offer an explanation for
possession as an alternative defence once possession is successfully
proven.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
The applicant,
Police and Prisons
Civil Rights Union (POPCRU),
launched this
application on behalf of its member, Mr Tebogo Makhetle (Mr
Makhetle), seeking an order reviewing and setting aside
the
arbitration award issued by the second respondent, Ms E Maree
(arbitrator), under case number PSSS230-13/14, dated 13 May 2016.
The
arbitrator found that the dismissal of Mr Makhetle was substantively
fair.
[2]
The third respondent,
South African
Police Service (SAPS)
and fourth respondent, the
National Commissioner of the South African Police Service (National
Commissioner) are opposing the application
in defence of the award.
Background
[3]
Mr Makhetle was employed by SAPS on 27 June
2006 as a police officer. He was dismissed on 13 June 2013 consequent
to a disciplinary
enquiry. At the time of his dismissal, he held a
rank of Constable and was earning R9500.00 per month.
[4]
The charges against Mr Makhetle were
couched as follows:
‘
Charge
1
In terms of section 40 of
the South African Police Act, 1995 (Act 66 of 1995) read with the
provisions of South African Police Disciplinary
Regulations of 2006,
you are hereby charged with serious misconduct in that you allegedly
contravened Regulation 20(z) of the said
regulations commit any
common law offence receiving of stolen property. On 1 August 2012,
you were found in possession of a robbed
digital Nikon camera at
Deipkloof area.
Charge 2
In terms of section 40 of
the South African Police Act, 1995 (Act 66 of 1995) read with the
provisions of South African Police Disciplinary
Regulations of 2006,
you are hereby charged with serious misconduct in that you allegedly
contravened Regulation 20(z) of the said
regulations commit any
statutory offence in terms of section 36 of the General Law Amendment
Act, 62 of 1955 possession
and receipt of stolen
property. On 1 August 2012, you were found in possession of a robbed
digital Nikon camera at Deipkloof area.
Charge 3
In terms of section 40 of
the South African Police Act, 1995 (Act 66 of 1995) read with the
provisions of South African Police Disciplinary
Regulations of 2006,
you are hereby charged with serious misconduct in that you allegedly
contravened Regulation 20(z) of the said
regulations commit any
statutory offence in terms of section 37 of the General Law Amendment
Act, 62 of 1955 receiving
stolen property without
reasonable cause. On 1 August 2012, you were found in possession of a
robbed digital Nikon camera at Diepkloof
area.’
[5]
Mr Makhetle was found guilty of all charges and accordingly
dismissed. He unsuccessfully appealed the verdict and the sanction.
POPCRU referred the unfair dismissal dispute to the first respondent,
Safety and Security Sectoral Bargaining Council (SSSBC). The
dispute
remained unresolved after a conciliation hearing. The dispute was
accordingly arbitrated at the request of the applicants,
hence the
impugned award.
Arbitration
proceedings
[6]
The case of SAPS was mainly that Mr
Makhetle was found in possession of a Nikon digital camera (camera)
that had been stolen from
the family of Ms Ntsiki Madela (Ms Madela),
the complainant, in an armed robbery.
[7]
Ms Madela testified that her family was a
victim of an armed robbery and amongst the items that were stolen was
a camera. A robbery
case was duly opened at Mondeor Police Station.
About a month later, she received a call from someone she grew up
with who informed
her that there were three guys who were selling a
camera which contained her family pictures. She was informed that the
three guys
were on their way to pawn the camera at the pawnshop in
Diepkloof, Zone 5, opposite ‘Bara’ taxi rank.
[8]
Ms Madela requested assistance from the
police officers from the Johannesburg Metropolitan Police Department
(JMPD) to follow the
lead to the pawnshop. Indeed, the JMPD police
officers escorted her. Upon arrival at the pawnshop, she saw the
three suspects sitting
on a bench and Mr Makhetle was in the middle.
The owner of the pawnshop held the camera. The JMPD officer, Mr Neo
Motseke (Mr Motseke),
was the one who interrogated the suspects. When
they were asked as to who was pawning the camera, Mr Makhetle
identified himself
as the owner and took out his SAPS card. His
explanation was that he got the camera from a guy who owed him money
and he was pawning
it in order to obtain his money.
[9]
Ms Madela looked at the photos in order to
confirm whether indeed the camera belonged to her family. She was
shocked to see the
pictures of her family members. Mr Makhetle and
the other two gentlemen were arrested and taken to Diepkloof Police
Station.
[10]
Mr Makhetle was known to the SAPS police
officers at Diepkloof Police Station and they showed an interest in
the matter. The three
suspects, Ms Madela and the JMPD police
officers were all taken to a room where further interrogation took
place. Mr Makhetle told
the SAPS police officers that he got the
camera from a person who owed him money. Mr Makhetle was allowed to
make a call and he
spoke to a person about the camera and an
arrangement was made to arrest that person. Mr Motseke refused to
allow Mr Makhetle to
join the SAPS police officers to pursue the
alleged owner of the camera. The SAPS went on a chase but did not
come back with the
said person. Mr Makhetle and two suspects were
then taken to Mondeor Police Station where they were detained.
[11]
Ms Madela made a statement under oath which
was part of the criminal docket submitted during the arbitration
proceedings. The statement
gave a broad account of what transpired at
the pawnshop and does not mention who was in possession of the
camera.
[12]
Mr Motseke, on the other hand, testified
that he found the camera in Mr Makhetle’s possession who
subsequently identified
himself as the person who was pawning the
camera. He conceded during cross-examination that someone amongst the
suspects did explain
that the camera was received from a person who
owed him money. However, he denied that Mr Makhetle specifically
mentioned that,
his friend, Mr Letlotlo Seoke (Mr Seoke), was the
person who had received the camera from a person who owed him money.
[13]
Mr Motseke also confirmed the events that
took place at Deipkloof Police Station. He was adamant that the
reason he did not join
the SAPS chase on the person who gave the
camera to the suspects is because he thought they were Mr Makhetle’s
friends and
were assisting him. He conceded that the sworn statement
that he made as an arresting police officer did not give a detailed
account
of the events of the day.
[14]
Mr Makhetle, on the other hand, testified
that he was requested by his friend, Mr Seoke, to accompany him to
pawn a camera. Mr Seoke
informed him that he got the camera from Mr
Vilakazi who owed him money. This is the explanation that he gave to
the JMPD police
officers at the pawnshop and subsequently to the SAPS
police officers at Diepkloof Police Station. Mr Seoke was allowed to
call
the owner of the camera, Mr Vilakazi, in order to arrest him. Mr
Vilakazi agreed to meet with him. Mr Motseke refused to allow him
to
join the chase on Mr Vilakazi. The SAPS police officers went to Mr
Vilakazi’s house. Mr Vilakazi escaped when he saw the
police
motor vehicle. The SAPS police officers came back with Mr Vilakazi’s
identity document which was found in the motor
vehicle he used to
escape which he later abandoned after hitting a wall.
[15]
They were detained at Mondeor Police
Station. Upon his release, he pursued Mr Vilakazi and assisted in his
arrest in connection
with the robbery at Ms Madela’s place.
However, Ms Madela could not positively identify him as one of the
suspects who robbed
her family.
[16]
Mr Seoke corroborated Mr Makhetle’s
evidence in as far as the ownership of the camera. He testified that
he was the one pawning
the camera and that he had received it from Mr
Vilakazi. It was his driver’s licence that was with the
pawnshop owner as
he was the one pawning the camera. He, however,
hazily remembered the incidents of the day in question but seemed to
recall that
Mr Vilakazi was subsequently pursued by the SAPS officers
from Diepkloof Police Station.
Arbitrator’s
findings
[17]
The arbitrator accepted the evidence of Ms
Madela and Mr Makhetle that the camera was with the pawnshop owner
when Ms Madela and
the JMPD officers entered the pawnshop. In
essence, she rejected the evidence of Mr Motseke that he had found
the camera with Mr
Makhetle when he searched the suspects.
[18]
The arbitrator also accepted the
unchallenged evidence of Ms Madela that Mr Makhetle had identified
himself as the one pawning the
camera when he was asked by Mr Motseke
and went on to show him his SAPS card. When Mr Makhetle was
questioned about the camera
at Diepkloof Police Station, he told the
SAPS officers that he is a loan shack and was pawning the camera to
recover the money
he had loaned to someone who owned him money.
[19]
Mr Motseke confirmed that it was Mr
Makhetle who was pawning the camera. He conceded that an explanation
was tendered as to how
the camera came to the possession of one of
the suspects but denied that Mr Seoke’s name was specifically
mentioned. His
cross examination concentrated on his refusal to join
the SAPS police officers to pursue Mr Vilakazi.
[20]
Also, the arbitrator discounted the
evidence that Mr Seoke was the one who had received the camera from
Mr Vilakazi and was the
one pawning it simply because that version
was not put to Ms Madela. The evidence of Mr Seoke was also rejected
as being strange
because he could not recall the details of the
events that took place on the day in question. He did not recall
seeing Ms Madela
at the pawnshop despite the detailed account that
was given by Mr Makhetle and Ms Madela. Also, the events that took
place at Diepkloof
Police Station seem to have been purged from his
memory. He could not even recall making a call to Mr Vilakazi as
suggested by
Mr Makhetle or how much money did Mr Vilakazi owe him.
Analysis
[21]
The commissioner was clearly faced with two
conflicting versions.
Before getting into the credibility of
the respective witnesses, the arbitrator correctly considered the
inherent probabilities
of the two versions and took into account that
the critical parts of Mr Makhetle’s version had not been put to
Ms Madela.
[22]
Ms Madela clearly testified that the three suspects were at
the pawnshop. She successfully identified the camera that was being
pawned as belonging to her family. Among the three suspects, the
person who answered the question posed by JMPD officers was Mr
Makhetle and he identified himself as the person who was pawning the
camera. Mr Makhetle also confirmed the version that he was
pawning
the camera to the SAPS officers at Diepkloof Police Station and that
he had received it from a person who was owing him
money as a loan
shack.
[23]
Ms Madela conceded that a call was made to the person who gave
Mr Makhetle the camera but she was adamant that it was Mr Makhetle
himself who had made that call and not Mr Seoke. She also conceded
that there was a chase on Mr Vilakazi by the SAPS police officers
without success. However, Mr Makhetle’s version that the SAPS
officers came back with Mr Vilakazi’s ID and that she
screamed
when she saw it as she could identify him as one of the suspects who
robbed her family was never put to her. Also, it
was not put to her
that Mr Soeke was the person who was pawning the camera.
[24]
It is clear from the record that the
cross-examination of Ms Madela was superficial and unhelpful.
Her unchallenged evidence became the bedrock of
the arbitrator’s finding that Mr Makhetle was indeed in
possession of the
camera.
[25]
Section
36 of the
General
Law Amendment
Act
[1]
(the Act) reads as follows:
“
Any person who is
found in possession of any goods, other than stock or produce as
defined in section one of the Stock Theft Act,
1959 (
Act
57 of 1959
),
in
regard to which there is reasonable suspicion that they have been
stolen and is unable to give a satisfactory account of such
possession
,
shall be guilty of an offence and liable on conviction to the
penalties which may be imposed on a conviction of theft.”
[26]
Whist section 37 provides:
‘
Absence
of a reasonable cause for believing goods properly acquired
(1) (a) Any person
who in any manner, otherwise than at a public sale, acquires or
receives into his or her possession
from any other person stolen
goods, other than stock or produce as defined in section 1 of the
Stock Theft Act, 1959,
without having reasonable cause for
believing at the time of such acquisition or receipt that such goods
are the property of the
person from whom he or she receives them or
that such person has been duly authorised by the owner thereof to
deal with or dispose
of them,
shall be guilty of an offence and
liable on conviction to the penalties which may be imposed on a
conviction of receiving stolen
property knowing it to have been
stolen except insofar as the imposition of any such penalty may be
compulsory.’
[27]
What
is clear from the above provisions is that the elements of the
offence are that there must be possession of stolen or suspected
to
be stolen property without giving reasonable account of possession or
without reasonable cause to believe that at the time of
acquiring it,
it belonged to the person it was received from. Also,
to
be found guilty of the common law offence of receiving, a person must
have acquired or received the stolen property knowing it
to be
stolen.
[2]
[28]
In this instance the arbitrator, having accepted that Mr
Makhetle was indeed in possession of the property that had been
stolen,
the next enquiry was about the explanation or evidence on the
circumstances that prevailed at the time of the acquisition of the
property.
[29]
In these proceedings, counsel for the third and fourth
respondents, Ms Baloyi, submitted that, having denied possession, it
was
impermissible for Mr Makhetle to then offer any explanation for
his possession consequent to SAPS successfully proving possession.
Mr
Magoshi, Mr Makhetle’s attorney, conversely submitted that the
explanation on how the camera came to Mr Makhetle’s
friend, Mr
Seoke, mainly challenged the allegation that he was in possession
thereof. However, to the extent that he was found
to be in
possession, then his explanation should suffice to prove that he had
no reason to suspect that the camera was not Mr Vilakazi’s
and
the fact that he went out of his way to assist in his subsequent
arrest, must count in his favour.
[30]
Mr Magoshi’s submission is untenable
for the following reason: The applicant’s evidence in this
regard clearly points
to Mr Seoke as the person who received the
camera from Mr Vilakazi who owed him money. As such, there was no
explanation as to
the circumstances regarding Mr Makhetle’s
receipt or possession of the camera as he categorically disavowed any
knowledge
of the camera. Put differently, the explanation on the
circumstances that prevailed when the stolen property was received
must
be preceded by an admission, at least, that the suspect was in
possession thereof. Therefore, I agree with Ms Baloyi that an
explanation
cannot be offered as an alternative defence in the event
that possession is successfully proven.
[31]
Mr Makhetle was clearly ill-advised in
denying possession when it is clear that he had some explanation to
offer.
[32]
I am
satisfied that the arbitrator’s evaluation of the evidence is
sufficiently detailed and shows that she correctly accepted
the
evidence of Ms Madela and discounted the parts of Mr Makhetle’s
version that had not been tested with Ms Madela. Her
conclusion that,
on a balance of probabilities, Mr Makhetle was guilty of the offence
of being in possession of stolen property
in terms of common law and
sections 36 and 37 of the
Act
cannot be faulted.
[3]
[33]
The
transgression Mr Makhetle was found guilty of is serious as the
‘receipt of stolen goods is a vital link in the chain
of
gainful disposal of the spoils of criminality’.
[4]
To make matters worse, Mr Makhetle was a law enforcement
officer and, as such, it was incumbent upon him to assist in
eradicating
the trade in stolen goods which would in turn reduce the
primary crimes of robbery and theft.
[34]
In the circumstances, the sanction of dismissal was clearly
justifiable.
Conclusion
[35]
I
am accordingly satisfied that the award falls with the band of
reasonable wards as extensively spelt out in
Sidumo
v Rustenburg Platinum Mines
[5]
and
expounded
in various
dicta
of both the Supreme Court of Appeal (SCA) and the Labour Appal Court
(LAC).
[6]
Accordingly,
the review application stands to be dismissed.
Costs
[36]
It is trite that costs do not follow the result in this Court,
especially in this instance
as there is persisting collective
agreement relationship between POPCRU and SAPS.
[37]
In the circumstances, I make the following order:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
_________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr
M.Magoshi of Majang
Incorporated
For the Third and Fourth
Respondents: Advocate S Baloyi SC
Instructed
by: The
State Attorney-Johannesburg
[1]
Act 62 of 1955.
[2]
Milton
South African Criminal Law and Procedure
3 ed vol II Common-Law Crimes (Juta, Cape Town 1996) at 664-6;
Snyman Strafreg 4 ed (Butterworths, Durban 1997) at 525-6.
[3]
See:
Ndlazi
v S
(CA&R272/2016) [2017] ZAECGHC 23 (23 February 2017)
‘contravention of section 36 if the finder forms a reasonable
suspicion after the goods were found in the accused’s
possession; provided that, at that stage, the goods are still in his
possession and he is unable to give a satisfactory account of such
possession.’
[4]
See:
S
v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC);
1996 (12) BCLR 1588
(CC) at para 12.
[5]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC) paras 78 and 79.
[6]
See:
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC);
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[
2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC);
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA).