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[2019] ZALCJHB 361
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Wessels v General Public Service Sectoral Bargaining Council and Others (JR2211/12) [2019] ZALCJHB 361 (19 December 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 2211/12
In the matter between:
ORPA WESSELS

Applicant
and
THE GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL

First Respondent
PIETER VENTER
N.O

Second Respondent
NATIONAL PROSECUTING
AUTHORITY

Third Respondent
Heard: 14 June 2019
Delivered: 19 December 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant was employed the third respondent, the National
Prosecuting Authority (NPA) as a Regional Court Control Prosecutor
at
the Kroonstad Magistrate’s Court since 1996. Having initially
been suspended on 20 September 2008, she was subsequently

called to an internal disciplinary enquiry to answer to seven charges
of misconduct. She was found guilty and was dismissed
on
21 July 2011. An appeal hearing upheld the dismissal based
on five of the seven charges.
[2]
A dispute referred to the first respondent
(GPSSBC) could not be resolved at the conciliation proceedings and
was referred for arbitration.
The matter came before the second
respondent (Arbitrator) for determination, and an arbitration award
was issued on 21 June 2011,
in terms of which the dismissal
of the applicant was found to be procedurally and substantively fair.
It is this arbitration award
that the applicant seeks to have
reviewed and set aside. The review application is opposed by the NPA.
[3]
The review application was launched outside of the
statutory time periods. The NPA did not oppose the condonation
application in
that regard. Having had regard to the period of the
delay, which is about six weeks, the explanation tendered in that
regard, the
importance of this case and the overall interests of
justice, it is deemed appropriate that condonation be granted.
[4]
At the arbitration proceedings, the NPA had only
relied on two allegations of misconduct in seeking that the dismissal
of the applicant
be confirmed. These were;
“
Count
6:
That
you made yourself guilty of committing the common law offence of
perjury in that on or about 7 July 2008 and at or
near
Kroonstad, you unlawfully and intentionally made a false declaration
whilst under oath in case number: SH106/2006.
Count
7:
That
you made yourself guilty of committing the common law offence of
defeating or obstructing the course of justice or an attempt
thereto
in that on or about 7 July 2008 and at or near Kroonstad,
you on your own and/or in conjunction with other State
Witnesses in
case number 106/2006 fabricated false evidence and/or allowed false
evidence to be presented”
The
evidence:
[5]
The allegations against the applicant related to criminal proceedings
that were before the Free State Regional Court in Kroonstad
in the
matter of the
State v Phakashe and 2 Others under Case Number:
SH106/2006.
The accused persons in that case
viz
,
Messrs Fanyane Phakashe, Amos Machabela and Amos Madondo (The
Accused) were charged with theft of copper cables.
[6]
In a separate and unrelated matter, a certain Dr Mofokeng had laid a
complaint of armed robbery with the South African Police
Service
(SAPS) after being robbed of his cellular phone.
[7]
As part of the SAPS
investigations into any crime,
a
subpoena in terms of section 205 of the Criminal Procedure Act
[1]
,
compelling cell phone service providers to discover certain cell
phone records
can be
obtained from a Magistrate. In order to obtain a section 205
subpoena, the investigating officer must furnish a Senior or
Control
Prosecutor with an affidavit, detailing the reasons why the subpoena
should be issued. The Senior or Control Prosecutor
would then
complete a section 205 statement/summons, which would then, together
with the affidavit, be submitted to the Magistrate
to sign and
authorise the subpoena. Once authorised, the subpoena would then be
handed over to the investigating officer, who would
in turn will hand
it over to the SAPS’ technical support unit to approach the
cell phone service providers to discover relevant
cellular phone
records.
[8]
It was common cause that a Magistrate, Mr Claasen, was approached by
the applicant in November 2005 with a request to issue
a section 205
subpoena to compel cell phone service providers to discover certain
cell phone records. The relevant  statement/summons
was
completed and signed by the applicant as Control Prosecutor on
29 November 2005, and was further signed and date
stamped
by Mr Claasen on 30 November 2005.
[9]
The criminal trial in the copper cable theft matter commenced before
another Magistrate, Mr Aucamp. The Accused at those proceedings

contested the legality of the section 205 subpoena, contending that
the cellular phone records obtained in linking them to the
alleged
criminal activities were illegally obtained. This had necessitated
that the matter be referred to a trial within a trial
in order to
ascertain the admissibility of the section 205 subpoena as well as
the relevant cellular phone records. This also implied
that the
applicant had to withdraw from the matter as prosecutor, as she was
involved in obtaining the subpoena, and further since
she was
required to be a witness in the trial within the trial. The applicant
was replaced by another prosecutor, Mr Jan Heinrich
Wiegand, who
reported directly to her.
[10]
Central to the enquiry in the trial within a trial proceedings was
whether or not the cell phone data discovered by cell phone
providers
was admissible evidence or not. Wiegand had called upon
Senior
Superintendent, GB Van Deventer to testify as the investigating
officer. His evidence however was that
there was not any
founding affidavit in the docket in support of the subpoena, and he
had no knowledge of where that affidavit was.
The proceedings were
then postponed to 7 July 2008.
[11]
When the proceedings resumed on
7 July 2008, Van Deventer had produced an affidavit in
support of the issuing of the subpoena,
which was purportedly deposed
to on 7 November 2005 by Mr Jan Mynhardt Wolmarans (An
erstwhile police officer who held
the rank of Lieutenant Colonel)
before him
[2]
.
[12]
The applicant, Van Deventer and Wolmarans testified in the trial
within a trial proceedings in regards to the veracity of the

affidavit and legitimacy of the section 205 subpoena. However, the
Magistrate, Mr Aucamp was unimpressed with their evidence, and
had
disallowed the evidence obtained as a result of that subpoena. This
had resulted in the acquittal of the Accused.
[13]
The NPA’s case against the applicant is that the affidavit
(exhibit “K”) did not exist on 7 November 2005
on the
date on which it was purportedly created, but was typed by her on her
computer on the morning of 7 July 2008 before
the trial
within the trial commenced. It was alleged that the applicant had
also not advised Wiegand as the new prosecutor to the
case that
exhibit ‘K” was in fact created on 7 July 2008.
According to the NPA, the affidavit submitted in
Court before Mr
Aucamp was a fabrication.
[14]
Wiegand’s testimony at the arbitration
proceedings was that
the Accused’s main objection was
that the cell phone data implicating them was obtained as a result of
a section 205 subpoena
issued in a different case number (177/9/2005)
related to an armed robbery. She further testified that;
14.1 Investigations had revealed that
there were three applications for section 205 subpoenas in respect of
the same case number,
one of which was signed by the Magistrate, Mr
Claasen, but none of these subpoenas related to the criminal matter
of the Accused.
14.2 At the trial within the trial on
7 July 2008, Van Deventer had submitted a copy of an
affidavit (“Annexure
J”) which was deposed to by
Wolmarans. Wiegand on the other hand had not seen a copy of that
affidavit prior to it being
handed in Court. Van Deventer had
explained in Court that he had obtained a copy of the affidavit
through Wolmarans who had assisted
with the investigations.
14.3 The applicant was also called as
a witness in the trial within a trial, and had testified that the
relevant affidavit deposed
to by Wolmarans was used in support of the
section 205 subpoena in 2005, which was also the same copy presented
in Court on 7 July
2008.
14.4 It had however transpired that
the copy of the affidavit that was produced in Court was reproduced
by the applicant, and that
she had not when handing over the case to
him, informed him of that fact, nor was the Magistrate or counsel for
the Accused informed.
14.5 Wiegand’s contention was
that the applicant was dishonest when she testified in Court that the
affidavit was previously
available and thus misled the Court. His
further contention was that the applicant was a party to the
fabrication of the affidavit
submitted in Court on 8 July 2008,
and that she had therefore defeated the ends of justice and committed
perjury.
14.6 According to Wiegand, the Accused
in the copper cable theft case were acquitted because they were
arrested as a result of data
or cell phone information obtained
before their arrest in respect of another matter, which was
procedurally incorrect. It would
have been proper for the applicant
to have had a new section 205 subpoena issued if there was a
different case number in respect
of which the cellular phone data was
sought.
[15]
The applicant’s testimony was that;
15.1 There was no requirement for the
request of a section 205 subpoena to be accompanied by an affidavit
of the investigating officer,
and the common practice was to approach
Magistrates in an informal manner, who in certain instances had
signed the summons without
even reading the contents thereof or
requesting a docket.
15.2 After a docket was opened in
respect of the theft of Dr Mofokeng’s cellular phone, she had
obtained a section 205 subpoena.
The relevant cellular phone data
from the service providers had revealed that the cellular phone in
question was used in Hillbrow
in Johannesburg. In obtaining the
information in question and the subpoena, she had utilised case
number 177/9/2005 which related
to the armed robbery of Dr Mofokeng.
15.3 Some of the data discovered
implicated the Accused who were already arrested in the theft of
copper cable matter, even though
their case was unrelated. As far as
she was concerned, it was not uncommon in certain instances, to use
the same cell phone data
obtained under a different case number for
the purposes of another case number, as this curtailed costs. She
further contended
that the same cell phone data would in any event be
obtained irrespective of the case numbers which had been used,
especially if
the data was confirmed by the cell phone service
providers.
15.4 At some point after the trial
within the trial was postponed, Van Deventer had showed her an
affidavit deposed to by Wolmarans.
Certain telephone numbers
identified in the affidavit were linked to other crimes, and it was
at that point that a section 205
subpoena was issued in order to
investigate the other cell numbers as provided by Wolmarans.
Investigations led were unable to
locate the suspects in the armed
robbery matter, but had led to the discovery that some of the
telephone numbers were used in the
committal of copper cables theft.
This had led to the arrest of one of the Accused, Mr Phakashe.
15.5 In the morning of 7 July 2008
before the trial within a trial commenced and whilst in her office,
Wolmarans came
with Van Deventer, and had produced an affidavit which
he had deposed to in support of the section 205 subpoena in 2005. A
copy
of the affidavit could however not be made in time, as the
photocopy machine in the office was out of order due to a lack of
toner.
15.6 Since there was nowhere else she
could make a copy, Van Deventer had then asked her to type and
reproduce an identical affidavit
and she had done so by using her
computer. The produced copy was identical to the 2005 affidavit
(other than the font size), and
copies were printed and given to
Wiegand.
15.7 The applicant contended that the
evidence and the affidavit were not fabricated, and what she had done
was to simply re-type
the affidavit that was already in existence to
be used in the criminal proceedings. Her further testimony was that
the initial
affidavit deposed to by Wolmarans was discovered in one
other docket that was already closed after the verdict in respect of
the
Accused, and she did not know how that had happened.
15.8 She had confirmed under
cross-examination that Van Deventer had commissioned the reproduced
copy of the affidavit, which was
also signed by Wolmarans, even
though it was not necessary for the reproduced copy to have been
signed.
[16]
Van Deventer’s testimony on behalf of the applicant was that;
16.1 He was the Investigating Officer
in both the theft of Dr Mofokeng’s cellular phone and the
copper cable theft matters.
He confirmed that the Accused were
arrested after the section 205 subpoena was issued under the case
number related to the armed
robbery case. He had been under the
impression that a separate section 205 subpoena was authorised in the
copper cable theft.
16.2 Wolmarans had approached him at
some stage during investigations and showed him an affidavit which
did not have a list with phone numbers attached to
it, and informed him that the only evidence that linked the Accused
to copper
cable theft was the cell phone data obtained in the armed
robbery case.
16.3 He confirmed having been called
as a witness in the trial within a trial hearing and contended that
his testimony had ‘
mistakes’
as he could not
remember the facts correctly. He had confirmed in that trial that he
did not know where the affidavit of Wolmarans
was despite insisting
that it existed.
16.4 He further confirmed the
testimony of the applicant in regard to the reproduction of the
affidavit on 7 July 2008,
and further confirmed that he was
the one that had asked her to re-type the affidavit which she did.
Only one copy was printed
by the applicant as he wanted to keep it in
the docket.
16.5 The original copy according to
Van Deventer was then kept by Wolmarans to give to Wiegand in Court
as an exhibit. He thereafter
went back to his base to affirm the
reproduced affidavit.
[17]
Wolmarans’ testimony was that;
17.1 He was a police officer and at
the time of the incidents in question, he was a Director of Combined
Private Investigations
(CPI). He had deposed to an affidavit in order
to apply for a summons in terms of section 205. The said affidavit
was typed in
his private office in Germiston and he had given a copy
to Van Deventer  and other members of SAPS whilst he kept the
original.
17.2 The affidavit according to
Wolmarans was signed in Kroonstad and attached to it was a list of
certain cell phone numbers he
had obtained from an informer.
17.3 Before 07 July 2008,
Van Deventer had called him to enquire about copies of his affidavit.
He had kept the original
in a duplicate docket and had brought it
with him on the day of the trial within the trial. He then gave the
original copy to Wiegand.
The applicant had then re-typed the
affidavit as they could not photocopy the original. He then went with
Van Deventer to the police
station to have the re-typed copy
commissioned. He was not sure whether a copy in that regard was given
to Wiegand by him or Van
Deventer
The
Arbitrator’s findings:
[18]
The Arbitrator in confirming the substantive fairness of the
applicant’s dismissal appreciated that there were two mutually

destructive versions presented by the evidence of Wiegand and that of
the applicant and her witnesses. This required a determination
on a
balance of probabilities, as to which version was the most probable.
The probabilities however according to the Arbitrator
were stacked
against the applicant’s version on the grounds that;
18.1 It was extremely improbable that
on 7 July 2008 when the affidavit was reproduced, that all
the photocopy machines
at all the Magistrate Court’s Offices
would be out of order on the same day. Furthermore, there were
discrepancies in Van
Deventer’s version in regards to how the
affidavit could not be photocopied;
18.2 It was odd that Van Deventer and
Wolmarans did not make copies at the police station or at the
latter’s offices. Wolmarans
had conceded that he could have
simply called his office to have his affidavit emailed to the
applicant’s office at the time;
18.3 Over a protracted period whilst
the trial within the trial was adjourned, Wolmarans did not deem it
necessary to provide the
affidavit in question or a copy thereof to
Van Deventer or any of the State Prosecutors, and only did so on the
morning of the
hearing;
18.4 Even though the affidavit was
signed at a police station according to Van Deventer, a copy in that
regard did not bear a stamp
other than a signature. In any event,
since Van Deventer was no longer employed by SAPS at the time he
could not have acted as
Commissioner of Oaths, and was therefore not
in a position to affirm the statement;
18.5 There were contradictions between
the applicant’s version, which was that the affidavit could not
be found as Wolmarans
had relocated offices, whilst the latter’s
version was that the affidavit was in his office;
18.6 The reproduced affidavit was
backdated and thus suspicious. The applicant therefore had a duty to
disclose that fact to the
Court, and it was for the Magistrate to
decide whether or not the affidavit was authentic or not;
18.7 The applicant was party to the
creation of the affidavit in her office on 8 July 2008. The
affidavit was not deposed
to in 2005 and was only created in the
course of the hearing, and she had failed to advise the Magistrate or
Wiegand of that fact;
18.8 In regards to the appropriateness
of the sanction, the Arbitrator stated that a State Prosecutor as an
official of the Court
should act with the highest degree of integrity
and honesty. The misconduct committed by the applicant was serious as
attested
to by Mr Swanepoel on behalf of the NPA, and the latter
could thus not be faulted in deciding on the sanction of dismissal.
The
grounds of review:
[19]
Various grounds were relied upon by the applicant
in contending that the award was reviewable. She submitted that the
Arbitrator
committed a material irregularity by concluding that the
purported 2005 affidavit did not exist, and that the 2008 affidavit
was
fabricated. In this regard, it was submitted on her behalf that
the Arbitrator failed to properly consider the evidence of Wiegand,

who had conceded that this affidavit could have been with the
relevant cell phone provider, or that it could have been in the
possession of Adv. Potgieter who represented the Accused. She further
contended that in any event, the 2005 affidavit was found
in a
skeleton docket as testified by Captain Els on her behalf.
[20]
The Arbitrator according to the applicant, also
failed to take into account the evidence of Wolmarans that he had
deposed to the
2005 affidavit, which he had brought on 7 July 2008;
the evidence of Van Deventer, that he had relied on the 2005
affidavit
in seeking the subpoena, and that Wolmarans had handed him
that affidavit on 7 July 2005. The applicant took issue
with
the fact that the NPA did not call the Magistrate who had issued
the subpoena as a witness, as he would have been in a position
to
clarify the existence or otherwise of the 2005 affidavit.
[21]
The applicant further criticised the Arbitrator’s
award on the basis that an evaluation of the facts and evidence was
limited
to her version of the circumstances under which the 2008
affidavit was reproduced and had thus disregarded the facts and
evidence
that pointed to the fact that the 2005 affidavit did exist.
The
legal framework:
[22]
The test on
review is trite. An arbitration award will be assessed against the
standard of reasonableness, irrespective of any defects
that may be
complained of in the award
.
As was
stated in
Goldfields
,
the review court must
ascertain whether the arbitrator considered the principal issue
before him/her; evaluated the facts presented
at the hearing and came
to a conclusion which was reasonable to justify the decisions he or
she arrived at.
[3]
[23]
In
Stokwe
v Member of the Executive Council: Department of Education, Eastern
Cape and Others
[4]
(
Stokwe
),
the Constitutional Court reiterated that in determining whether the
arbitrator’s award is reviewable, the substantive fairness
of
the applicant’s dismissal is pertinent, and it is necessary to
have regard to what the essence of the charges proffered
against the
applicant entailed. This was recently reiterated by the
Labour
Appeal Court in
South
African Police Service v Magwaxaza and Others
[5]
,
where
it was held that the true enquiry had to be about determining, in a
manner which was not unduly formalistic, whether the employee’s

dismissal was fair, taking into account the allegations made against
the employee and the standard of conduct required of him or
her.
Evaluation:
[24]
The starting point as correctly
pointed out by counsel for the NPA, Mr Hulley, is to examine the
obligations of any Prosecutor in
the performance of his or her
functions. Section 32 (1)(a) of the National Prosecuting Authority
Act
[6]
(NPA Act) sets the tone in this regard by providing that;
'A
member of the prosecuting authority shall serve impartially and
exercise, carry out or perform his or her powers, duties and

functions in good faith and without fear, favour or prejudice and
subject only to the Constitution and the law'.
[25]
In accordance with the
provisions of section 22(6) of the NPA Act, the National Director of
Public Prosecutions
[7]
has formulated a Code of Conduct which is to be complied with by the
prosecuting authority. Under clause C (Impartiality) of the
Code of
Conduct
[8]
,
Prosecutors are required to perform their duties without fear, favour
or prejudice. In particular, they should
inter
alia
, act with objectivity
and pay due attention to the constitutional right to equality; take
into account all relevant circumstances
and ensure that reasonable
enquiries are made about evidence, irrespective of whether these
enquiries are to the advantage or disadvantage
of the alleged
offender; be sensitive to the needs of victims and do justice between
the victim, the accused and the community,
according to the law and
the dictates of fairness and equity; and to assist the courts to
arrive at a just verdict and, in the
event of a conviction, an
appropriate sentence based on the evidence presented.
[26]
Flowing from
the Code and a host of other authorities
[9]
,
it is apparent that individuals within the NPA are held to high
standards of integrity and care, and must be and perceived to be

honest, sincere and truthful in the execution of their functions.
When presenting evidence on behalf of the state, prosecutors
are
expected to do so with scrupulous fairness, and must not attempt to
obtain a conviction by all means at their disposal. Thus,
they should
ensure that all relevant evidence, even if detrimental to the State’s
case, is placed before the court. In the
end, a prosecutor is
personally responsible and accountable for the presentation of
his/her case in court, and must accept this
responsibility by
acknowledging any shortcomings
[10]
.
[27]
It is within the context of the above prescripts
and expectations, that a determination has to be made as to
whether
the applicant’s dismissal was substantively fair as found by
the Arbitrator, taking into account the allegations made
against her
and the standard of conduct required of her. In a nutshell, if it
were to be found that the evidence before the Arbitrator
demonstrated
that the applicant’s conduct was in compliance with these
prescripts, then there would be reason to interfere
with the
arbitration award, as it would not have fallen within the bounds of
reasonableness.
[28]
The Arbitrator appreciated that the applicant was
fully aware of what conduct was expected of her.
T
he
essence of the charges proffered against the applicant entailed
that
she had committed the common law offence of perjury in that she had
made a false declaration whilst under oath in case number:

SH106/2006. In simple terms, the allegation is that the applicant
lied in her testimony before the Magistrate, Mr Aucamp in the
trial
within a trial on 7 July 2008, when she said that
Wolmarans’ affidavit existed at the time the section 205

subpoena was issued in 2005. Related to that charge was that the
applicant had defeated or obstructed the course of justice in
that
she, in conjunction with other State witnesses (Wolmarans and Van
Deventer) in case number 106/2006, had fabricated false
evidence
and/or allowed false evidence to be presented. This charge pertained
to the production of the reproduced affidavit in
court on
7 July 2008.
[29]
Having had regard to the facts of this case as presented before the
Arbitrator, and further having had regard to the allegations
levelled
against the applicant, the only invariable conclusion to be reached
is that there is no basis to interfere with the Arbitrator’s

award, as the evidence clearly points to the applicant having failed
on all fronts in her duties as a prosecutor, to live up to
the
principles embodied in the NPA’s Code of Conduct.
[30]
The applicant failed miserably to live to the cardinal rules as an
officer of the Court, failed to assist the Court in its
quest to be
effective in upholding the rule of law, in dispensing justice, failed
to take all reasonable steps to set the record
straight and assist
the Court when called upon to do so in regard to the existence of the
affidavit in question, and worst of all,
failed to take
responsibility and accountability when the State’s case against
the Accused was dismissed. Through these monumental
failures, the
applicant disqualified herself as an officer of the Court, and
clearly the Arbitrator’s conclusions that her
dismissal was
appropriate fell within a band of reasonableness. My conclusions in
this regard are further fortified by the following
observations;
30.1 The events of 07 July 2008
prior to the trial within the trial before the Magistrate, Mr Aucamp
are in my view dispositive
of this case. It was common cause that the
successful prosecution of the Accused in the copper cable theft case
depended solely
on the admission of the evidence in respect of the
cell phone data, and that without the affidavit supporting the
section 205 subpoena
in respect of that matter, the State’s
case would fail.
30.2 The applicant’s contention
that an affidavit was not necessary for the purposes of obtaining a
section 205 subpoena is
belied by the fact that the State’s
case failed simply because it could not produce an affidavit that was
allegedly submitted
in support of the subpoena issued in November
2005. Furthermore, if the applicant believed that an affidavit was
not necessary,
this raises questions about whether in fact the
affidavit existed in the first place as she had alleged. This is so
in that on
the evidence of Wiegand, the docket in question only
contained the relevant statement/summons completed and signed by the
applicant
as Control Prosecutor on 29 November 2005, and
further signed and date stamped by Mr Claasen on 30 November 2005.

Everything required of the authorisation of the subpoena was in the
docket except the purported affidavit of Wolmarans.
30.3 When the trial within a trial was
initially postponed as Van Deventer could not explain where the
affidavit in support of the
section 205 subpoena was, and why it was
not in the docket, and to the extent that the applicant was aware
that this affidavit
was important for a successful prosecution, there
appears to have been no steps taken from the date of the postponement
until on
the morning of the trial within the trial, to either find
the original affidavit if indeed it did exist, or at most to advise
Wiegand,
the Court or the Accused’s counsel that this affidavit
did not exist. It would then have been up to the NPA to have decided

on what steps to take in regards to the Accused’ case in the
light of the dilemma faced by the State.
30.4 The applicant’s conduct
however on the morning of 7 July 2008 is clearly
inexcusable. She knew that herself,
Wolmarans and Van Deventer were
due to testify in the trial within a trial. Wolmarans together with
Van Deventer then approached
her with an affidavit before the trial.
If indeed this was the original affidavit, the various excuses she
came up with as to the
reason copies could not have been made in her
office or anywhere else are ridiculous and lacking in logic. It is
improbable as
the Arbitrator had correctly found, that the applicant
could not have found one photocopy machine that worked in the whole
NPA
office, the Court or anywhere else in order to make copies prior
to going to Court.
30.5 What is however more worrisome is
that the applicant knew that she was no longer the prosecutor in the
trial within a trial
and was to be a witness instead. With this
knowledge, it however never occurred to her to call in Wiegand, and
to advise and appraise
him on what their dilemma was insofar as
securing the important original affidavit.
30.6 Without even considering the
consequences of their actions, the applicant together with Wolmarans
and Van Deventer clearly
created an affidavit that did not exist. It
is said that the affidavit in question did not exist as the
Arbitrator had correctly
found, on the basis that if indeed it did,
there was nothing that prevented the applicant from giving that
original copy to Wiegand
as the prosecutor in the matter prior to
going to Court rather than reproducing it. If Wolmarans and Van
Deventer wanted to keep
a copy of that original, for whatever reason,
they could have done so after the trial was finalised.
30.7 The applicant sought to wash her
hands off the recreation of the alleged original affidavit on the
basis that she simply did
what Wolmarans and Van Deventer asked her
to do by re-typing the document on her computer. As a member of the
NPA and a prosecutor,
common sense should have prevailed upon her
that only original documents were permissible in Court unless a
plausible explanation
could be proffered as to the reason the
original could not be produced. She was clearly an intrinsical part
of the reproduction
of the alleged original affidavit, and not merely
a typist following orders.
30.8 Having presented a copy in Court,
it is however apparent that the Magistrate was not convinced that the
copy produced in Court
was a legitimate copy. It did not assist
applicant’s case as submitted on her behalf, that she believed
that the copy given
to her by Wolmarans and Van Deventer was an
original, or that she did not know the reason the reproduced copy was
backdated, signed
and commissioned by both Wolmarans and Van
Deventer.
30.9 Even if there was any element of
truth in her version that she believed that the copy was an original,
it is her subsequent
conduct in not disclosing the fact that the
affidavit was reproduced by her that makes the misconduct in question
gross. The applicant
is an officer of the Court. Common courtesy
required of her to have informed Wiegand of the fact that a copy of
the alleged original
affidavit was reproduced. She instead chose to
conceal the truth and let Wiegand on a wild goose chase.
30.10 The requirements of
transparency
and accountability also demanded that the applicant disclose the fact
that the alleged original affidavit was reproduced
to both the
Magistrate and the Accused’s counsel. She failed to do so, and
instead
,
testified before the Court
that the relevant affidavit deposed to by Wolmarans was used in
support of the section 205 subpoena in
2005, which was also the same
copy presented in Court on 7 July 2008. This was clearly an
untruth meant to mislead the
Court. Such conduct constitutes a worst
form of misconduct that any officer of the Court can commit in Court
for that matter.
In any event, it is common
knowledge that copy of anything that is reproduced and backdated
cannot qualify as an original, and the
Arbitrator was correct in
concluding that the copy presented in Court was suspicious.
30.11 It is not even necessary to deal
with Wolmarans’ explanation as to the existence of the
affidavit, as it is lacking
in logic. If he had the original
affidavit all material time, as to how it ended up in another docket
as established at a later
stage and as attested to by Captain Nel
makes no sense at all. If for some reason as put to Wiegand, the
original affidavit was
in the possession of the Accused’s
counsel or was left with the cell phone providers, it can only imply
that it was never
in Wolmarans’ possession at any stage.
30.12 Captain Nel for her part had not
properly perused the affidavit to confirm its contents. How then
could she have known that
the affidavit found in another docket was
the one that was not in the Accused’s docket when the matter
came for a trial within
a trial? Furthermore, Wiegand’s
evidence that the original affidavit could have been in the
possession of the Accused’s
counsel or with the relevant cell
phone providers does not take the applicant’s case any further,
as it was mere suppositions
made by Wiegand rather than statements of
fact in the face of certain versions being out to her.
30.13 The contention that it was the
responsibility of the NPA to call the Magistrate, Mr Claasen as a
witness to clarify the existence
or otherwise of the 2005 affidavit
further equally misses the point and misconstrues the burden of
proof. The applicant was charged
with having lied amongst other
things, about the existence of the original affidavit. It was not for
the NPA to prove that the
affidavit existed. That burden was on the
applicant.
[31]
In conclusion, it needs to the
restated that one of the fundamental principles prosecutors are held
to is to operate with transparency
and accountability. Furthermore,
where, as
was in this case, the legality of the actions taken by prosecutors
was at stake, it was crucial for the applicant to neither
be coy nor
to play fast and loose with the truth, and to take the Court into her
confidence, and fully explain the facts and circumstances
in relation
to the recreated affidavit, so that an informed decision could be
taken by the Magistrate in the interests of administration
of
justice
[11]
.
The applicant failed miserably on this score.
[32]
Her overall conduct clearly constituted lying
before the Magistrate under oath and in the process, by fabricating
an affidavit that
did not exist together with Wolmarans and Van
Deventer, she had clearly defeated and obstructed the administration
of justice.
Such conduct is not befitting of an officer of the Court,
and clearly, it was so egregious that the ultimate sanction of a
dismissal
was an appropriate one as properly concluded by the
Arbitrator.
[33]
It has repeatedly been stated
that in review proceedings, arbitration
awards
are not to be easily interfered with unless the decision arrived at
by the arbitrator was entirely disconnected with the
evidence or is
unsupported by any evidence and/or involves speculation on the part
of the commissioner
[12]
.
In this case, and in the light of the conclusions reached above,
there is no basis for any such interference.
In
line with the enquiry enunciated in
Goldfields
[13]
,
I am satisfied that the Commissioner gave the parties a full
opportunity to have their say in respect of the dispute; had
correctly
identified the dispute he was required to arbitrate;
understood the nature of the dispute he was required to arbitrate;
dealt with
the substantial merits of the dispute; and arrived at a
decision that falls within a band of reasonableness.
[34]
Section 162 of the LRA enjoins this Court to make an award of costs
upon a consideration of the requirements of law and fairness.
The NPA
sought a costs order, including the costs consequent upon the
employment of two counsel.
[35]
Given the facts and the circumstances of this case, the applicant
ought to have reflected deeply on the evidence that was presented
to
the Arbitrator
vis-à-vis
her own and that of her
witnesses. She ought to have reflected on her conduct that led to her
dismissal, the consequences of that
conduct on the administration of
justice, and the clearly well-reasoned and unassailable arbitration
award issued by the Arbitrator.
Clearly she did not, and it does not
assist her case to simply alleged that a costs order should not be
made against her as she
had fallen on hard times. It is my view that
she should have reflected on the consequences of persisting with this
review application.
The NPA was burdened with the costs of having to
oppose the applicant’s
ill-considered review
application, and I see no reason in law and fairness, why she should
not be burdened with those costs.
[36]
In the premises, the following order is made;
Order:
1. The Applicants’ application
to review and set aside the arbitration award issued by the First
Respondent under case number
GPBC3295/2011 is dismissed.
2. The Applicant is ordered to pay the
costs of this application.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv W.A Van Aswegen, instructed by Du Randt & Louw
Attorneys
For
the Third Respondent: Adv G. Hulley SC with Adv A Mosam, instructed
by the State Attorney
[1]
Act 51 of
1977
[2]
Discovered
at the arbitration proceedings as exhibit “K”
[3]
Gold Fields Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation
Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para [16]
[4]
(2019) 40 ILJ 773 (CC);
2019 (4) BCLR 506
(CC);
[2019] 6 BLLR 524
(CC) at para 57 & 62
[5]
(PA10/2017)
[2019] ZALAC 66
(5 November 2019) at para 40
[6]
Act
32
of 1998
[7]
In
consultation with the Minister and after consultation with Deputy
National Directors and Directors)
[8]
Code of
Conduct for Members of the National Prosecuting Author;
Published
by GN R1257 in GG 33907 of 29 December 2010.
[9]
Smyth v
Ushewonkunze and Another
1998 (3)
(SA) 1125 (ZSC);
S
v Nteeo
(2004)
1 SACR 79
(NC);
Malala
Geophry Ledwaba v The State
Case
No. A96/2016 (A decision of the High Court, South Gauteng Division,
delivered on 8 January 2018 (Unreported) at paragraphs
54 and 56
[10]
See also
Porritt
and Another v National Director of Public Prosecutions and Other
[2015] 1
All SA 169
(SCA);
2015 (1) SACR 533
(SCA) at para 11, where it was
held that;
:There
is a fundamental difference between the role and functions of a
prosecutor as opposed to those of a magistrate or a judge.
The
judiciary is held to the highest standards of independence and
impartiality because they are the decision-makers in an adversarial

judicial system.  Prosecutors neither make the final decision
on whether to acquit or convict, nor on whether evidence is

admissible or not. Their function is to place before a court what
the prosecution considers to be credible evidence relevant
to what
is alleged to be a crime. Their role excludes any notion of winning
or losing. It is to be efficiently performed with
an ingrained sense
of dignity, the seriousness and the justness of judicial
proceedings.”
[11]
See
Zuma
v Democratic Alliance
[2014]
4 All SA 35
(SCA) at para 35;
Kalil
NO v Manguang Metro Municipality
2014
(5) SA 123
(SCA), para 30
[12]
DRS
Dietrich, Voigt & Mia v Bennet CM N.O & Others
.
(2019) 40 ILJ 1506
(LAC);
[2019] 8 BLLR 741
(LAC)
at
para [30]
[13]
At para
[20]