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[2020] ZALCJHB 59
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Kelobetswe v Safety and Security Sectoral Bargaining Council and Others (JR2554/16) [2020] ZALCJHB 59 (4 March 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR2554/16
In
the matter between:
R.M
KELOBETSWE
Applicant
and
SAFETY AND SECURITY
SECTORAL
BARGAINING
COUNCIL
First
Respondent
MS.
M. SMITH
Second
Respondent
MINISTER
OF POLICE
Third Respondent
SOUTH AFRICAN POLICE
SERVICE: Fourth
Respondent
COMMISSIONER
OF POLICE
Heard
:
7
February 2019
Delivered
:
04 March 2020
Summary:
Application in terms of
section 145
of the
Labour Relations Act, 66
of 1995
– application to review and set aside arbitration
award.
JUDGMENT
RAPHULU,
AJ
Introduction
[1]
This in an application to review and set aside the arbitration award
made
by the Second Respondent (the arbitrator) under case number PSSS
689.04/05 dated 22 October 2016. The Applicant seeks to review
the
Second Respondent’s finding that the dismissal of the Applicant
was procedurally and substantively fair.
[2]
The dispute in this matter spans over a period of 15 years.
Background
[3]
The Applicant was employed in the South African Police Services
(SAPS)
on 11 January 1995 and was dismissed on 18 November 2004,
pursuant to a disciplinary hearing. At the time of the dismissal he
held
the rank of sergeant and was stationed at Kempton Park.
[4]
The Applicant was charged with and found guilty of contravening
Regulation
18(3) of the SAPS Disciplinary Regulations in that between
the period 29 December 2000 and 15 December 2002 he committed fraud
in respect of 8 stolen vehicles by recovering these vehicles and then
subsequently cancelling them on the system (i.e. logging that
these
vehicles had not been recovered) and thereby not handing them back to
their respective lawful owners.
[5] The
Applicant was departmentally and criminally charged, convicted and
sentenced to imprisonment. His conviction however was overturned and
set aside by a full bench on appeal.
[6]
It must be noted that this matter has a long history and was
arbitrated
previously under the auspices of the First Respondent
under case no. PSSS 689-04/05 in terms of which the Commissioner
found the
Applicant’s dismissal to be procedurally and
substantively fair in terms of her arbitration award dated 16 April
2012. This
award was however reviewed and set aside by Justice Cele
on 3 March 2016, who ordered that the matter be remitted to the First
Respondent for a
de novo
arbitration hearing before a
different Commissioner.
[7]
The parties agreed that it was not necessary to lead all of the
evidence
afresh at the second arbitration and that the record of the
disciplinary hearing and of the previous arbitration would be used
and some additional documentation submitted by the Applicant in
relation to the criminal proceedings.
Grounds
of review
[8] The
Applicant raised a number of grounds for review
inter alia
that
the arbitrator based her award on the following:
8.1
the Applicant’s argument that his password could have been used
by his
colleagues is vague and ambiguous;
8.2
he signed a Declaration of Secrecy and undertook to uphold such
declaration;
8.3
the Fourth Respondent (SAPS) admitted that the Applicant’s
password could have been
used by another colleague but the arbitrator
found that this was highly improbable; and
8.4
the hearsay evidence proves that the Fourth Respondent’s case
is corroborated.
[9]
The Applicant submits that the above findings by the Second
Respondent
are reviewable in that she committed a gross irregularity
by not applying her mind to the facts presented to her and/or that
she
misunderstood the evidence and facts to be proved in reading her
decision.
[10]
Under his grounds for review, the Applicant also raises the fact that
his conviction was
set aside by a full bench of judges after he
appealed against the conviction and sentenced imposed by the Regional
Court and that
the Second Respondent failed to apply her mind to the
elements of fraud. The Applicant contends that the elements of fraud
were
not proven and that there is no differentiation between fraud in
criminal matters and labour matters.
Evaluation
[11]
It seems to be common cause between the parties that there were a
total of 8 vehicles that
were recovered and subsequently cancelled on
the Information Management System (“IMS”) between the
period 2000 and
2001 and that following an investigation it was
ascertained that the computer used to cancel the vehicles on IMS and
access code
used to effect this was that of the Aapplicant’s.
[12]
SAPS contends that the Applicant signed a Declaration of Secrecy
Policy and in terms of
this policy, the Applicant undertook not to
reveal his secret password for the IMS system to anyone; not to allow
anyone else to
use his password; to secure his terminal against
unauthorised users; not to use the system to process SAPS information
without
authorisation and that the Applicant is fully aware of the
consequences of breaching his policy. SAPS submits further that the
IMS system is a private SAPS system that is used to cancel and
circulate stolen vehicles. The access code changes every second week
and all users can only access the system after undergoing training
and the signing of the Secrecy Policy. Furthermore, two passwords
are
allocated for this purpose, namely, a force password and a selected
one. SAPS contends that it is very difficult to obtain
both passwords
at once. SAPS in their opposing affidavit contend that to enter the
system, a police official has to use his/her
force number (akin to a
personnel number) and individual password. Once you are on the
system, another password has to be entered
in order for you to have
access to the circulation system.
[13]
The Applicant contends that his dismissal was substantively and
procedurally unfair. He
submits that his dismissal was procedurally
unfair as he was not given sufficient time to prepare for his case,
his rights were
not read to him and he did not receive the outcome to
his appeal application. The Applicant further submits that his
dismissal
was substantively unfair as SAPS failed to provide
sufficient proof that he used the IMS system and that SAPS elected
not to call
any expert witness to give testimony on the IMS system.
The Applicant contends that SAPS’ argument is based on hearsay
evidence
and that he did not cancel the vehicles in question and that
someone could have obtained his password and used it to cancel the
said vehicles. No witness was called to identify that the Applicant
was the person who assisted them in cancelling the vehicles,
only
witness statements by the investigating officer were submitted.
Evaluation
Procedural
fairness
[14]
In respect of the procedural fairness of the Applicant’s
dismissal, SAPS produced
sufficient proof that the Applicant was
notified of his rights and of the charges against him on 21 January
2004. The disciplinary
hearing thereafter commenced on 2 February
2004.The Applicant also elected to proceed with the inquiry.
Therefore, I agree with
the arbitrator that the Applicant had
sufficient time to prepare for the hearing. In respect of the
Applicant’s contention
that he did not receive the outcome of
the internal appeal, this did not negate the Applicant’s right
to refer the matter
to the First Respondent and accordingly, I agree
with the arbitrator that the Applicant had a fair opportunity to be
heard and
sufficient time to prepare his representations in this
regard. Furthermore, there was no evidence submitted to suggest that
the
actual disciplinary hearing held was procedurally unfair and that
the Applicant was denied his right to be heard in his regard.
Accordingly, the arbitrator was not unreasonable in finding that the
Applicant’s dismissal was procedurally fair on the
probabilities.
Substantive
fairness
[15]
In dealing
with the substantive fairness of the Applicant’s dismissal, I
deal first with the argument submitted by the Applicant
that that the
elements of fraud were not proven and that there is no
differentiation between fraud in criminal matters and labour
matters.
This is not strictly the case. In
South
African Police Service and another v Van der Merwe NO and others
[1]
the
Court stated as follows:
“
The finding of the
Commissioner that the employee could only in terms of regulation
20(z) of the SAPS Regulations be dismissed once
he was found guilty
by the Criminal Court is not only at odds with our legal system but
is also grossly unreasonable and thus fails
the test set out in
Sidumo.
It is trite that proof in civil matters such as labour
dispute is lower than that in criminal matters. In civil matters,
proof is
on the balance of probabilities whereas in criminal law is
beyond reasonable doubt
.”
(Own
emphasis)
[16]
It, therefore, cannot automatically follow that because the Applicant
was found not guilty
of fraud by a criminal court, he ought to be
found not guilty by the First Respondent. It is trite that the burden
of proof in
labour disputes is based on a balance of probabilities
and not beyond a reasonable doubt. Accordingly, in applying the
principles
laid down in
Sidumo and Another v Rustenburg Platinum
Mines Ltd and others,
a finding that an applicant committed fraud
on a balance of probabilities on a proper evaluation of the evidence
in circumstances
where such applicant was found not guilty of fraud
by a criminal court is a finding that any reasonable arbitrator could
have come
to, given the fact that the burden of proof is much lower
in labour disputes than in criminal ones.
[17]
The Applicant contends that there was no documentary evidence
submitted by SAPS which directly
links him to the cancellation of the
8 vehicles in question, although there was a witness, Mbhoto, who was
the Investigating Officer
for the matter and who testified that the
cancellation was done using the Applicant’s access code. The
Applicant in this
regard does not dispute that it was his access code
that was used to cancel the vehicles. The Applicant’s argument
essentially
hinges on the fact that it was not him who cancelled the
vehicles and that someone else used his access code to do this. In
this
regard, the Applicant argued that these access codes are usually
exchanged between colleagues and that Mbhoto conceded during
cross-examination
that it is possible that someone else could have
used the Applicant’s access code.
[18]
Whilst the Applicant contends that no expert witness was called by
SAPS to testify to the
use of the IMS system, it is important to
consider the fact that at the second arbitration, the parties agreed
to rely on the record
of the proceedings and documentation submitted
in the disciplinary hearing and the previous arbitration, and certain
additional
documentation. Further to this no oral evidence was led.
Accordingly, it is not unreasonable for the arbitrator to have
scrutinised
the evidence in order to determine whether SAPS proved
its case. SAPS had previously called Captain Barren Michael Muller,
who
testified as to how the system works.
[19]
Further, whilst Mbhoto may have testified that it is
possible
for someone to have obtained the Applicant’s access code to
cancel the vehicles, this does not mean that it is
probable
in
light of all of the surrounding facts.
[20]
The Applicant does not dispute that 8 vehicles were cancelled without
the necessary authority
and further that the cancellation of these
very vehicles were done using the Applicant’s access code and
were were not returned
to their rightful owners. The Applicant’s
access code was used in effecting the particular 8 cancellations in
question over
a period of 2 years. Each and every employee working in
the vehicle fraud department has his/her own individual access code
that
changes every 2 weeks, employees have two sets of passwords and
this makes it difficult for someone else to obtain both passwords.
The Applicant signed the Secrecy Policy and was fully aware of its
contents and the consequences of non-compliance with same.
[21]
The Applicant failed to submit any evidence that he shared his
password with anyone else
and/or how anyone else was able to obtain
his unique access code on several occasions over a period of 2 years.
He would have changed
his password on so many occasions within the
aforementioned period, it therefore is improbable that someone else
was able to access
these codes not once, but eight times over the 2
year period.
[22]
As regards
the admissibility of hearsay evidence and the witness statements
submitted by SAPS, which were compiled by the investigating
officer
assigned to the matter. The Labour Appeal Court in
Exxaro
Coal (Pty) Ltd v Chipana and Others
[2]
when dealing with hearsay evidence and the scope of section 3 of the
Law of Evidence Amendment Act
[3]
(LEAA) set out the following guidelines with regard to the admission
of hearsay evidence:
22.1
The possibility that hearsay evidence can be admitted in terms of
section 3(1)(c)
of the LEAA, if this is in the interests of
justice, is not a licence for the wholesale admission of hearsay
evidence in the proceedings.
22.2
In applying section 3(1)(c) the commissioner must be careful to
ensure that fairness is
not compromised.
22.3
A commissioner must be alert to the introduction of hearsay evidence
and ought not to remain
passive in this regard.
22.4
A party must, as early as possible in the proceedings, make known its
intention to rely
on hearsay evidence so that the other party is able
to reasonably appreciate the evidentiary challenge that he/she or it
is facing.
To ensure compliance, a commissioner should at the outset
require parties to indicate such an intention.
22.5
The commissioner must explain to the parties the significance of the
provisions of section
3 of the LEAA, or of an alternative, fair
standard and procedure that will be adopted by the commissioner to
consider the admission
of the evidence.
22.6
The commissioner must timeously rule on the admission of the hearsay
evidence and the ruling
on admissibility should not be made for the
first time at the end of the arbitration, or in the closing argument,
or in the award.
[23]
However, given that the parties agreed to not tender any oral
evidence at the arbitration
proceedings in question and solely relied
on the record of the disciplinary hearing and the previous
arbitration proceedings, I
do not make a ruling in respect of the
arbitrator’s award on the admissibility of the witness
statements as hearsay evidence.
[24]
For the reasons set out above, my conclusion is that the Second
Respondent reached a decision
that a reasonable decision maker would
reach in the circumstances.
[25]
Accordingly, the following order is made:
Order
1. The
application for review is hereby dismissed.
2.
There is no order as to costs.
_______________________
L. Raphulu
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Johan
Gouws Attorneys
Inc.
For
the Respondent: FMM
Snyman (Pretoria Bar) instructed by State Attorney Pretoria,
Mr. C
Duvenage
[1]
[2013] 3
BLLR
320 (LC)
[2]
[2019] 10 BLLR 991 (LAC).
[3]
45 of 1988.