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[2025] ZALCCT 3
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Bam v Safety and Security Sectoral Bargaining Council and Others (C148/2017) [2025] ZALCCT 3 (8 January 2025)
FLYNOTES:
LABOUR – Dismissal –
Shoplifting
–
Police
officer found with unpaid items – Disciplinary charges
included giving false name and address when arrested –
Arbitrator upheld substantive fairness of dismissal –
Employee making factual allegations in review which not part
of
evidence before arbitrator – Arbitrator refused to allow
additional cross-examination of witness – Applicant
wished
to recall witness to impugn her credibility – Arbitrator
faced with contrived and inherently implausible version
by
applicant and her mother – Application to review arbitration
award dismissed.
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Not Reportable/Of
interest to other judges
Case
no: C 148/2017
In
the matter between:
NOREEN
BAM
First Applicant
and
SAFETY AND SECURITY
SECTORAL BARGAINING COUNCIL
First Respondent
J
P HANEKOM (
N.O.
)
Second Respondent
THE
MINISTER OF POLICE (
N.O.
)
Third Respondent
THE
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE (
N.O.
)
Fourth
Respondent
Heard
:
17 April 2024
Delivered
:
8 January 2025
Summary:
(Review application – Unfair
dismissal for misconduct – SAPS Disciplinary regulation 20 (q)
– failing to uphold
employer’s interest by shoplifting –
Dishonestly giving false name at time of arrest - Application
dismissed)
JUDGMENT
LAGRANGE, J
Introduction
[1]
This is an application to review and set aside an arbitration award
in which the arbitrator upheld the substantive fairness
of the
dismissal of the applicant, Ms N Bam (‘Bam’), who was
employed as a sergeant in the police service. The application
was
first enrolled in November 2018 but was postponed
sine die
owing
to the withdrawal of Bam’s attorney and the judge’s
stipulation that the matter could only be re-enrolled once
the taxed
costs of the postponement had been paid by her.
Background
[2]
Bam was called to a disciplinary hearing and dismissed on 4 December
2014 on charges of contravening Regulation 20(q)
of the South African
Police Disciplinary Regulations of 2006 in that Bam failed to uphold
the interest of the employer by unlawfully
removing items from the
shelves at Checkers Hyper and further that Bam failed to act honestly
by giving a false name and address
when arrested. At the time Bam was
serving at Mowbray police station.
[3]
She was found guilty and dismissed on 24 August 2015. At the
arbitration hearing she only disputed the substantive fairness
of her
dismissal.
[4]
Evidence was led of Sergeant D Vergotine (‘Vergotine’),
from Parow police station, who had arrested the applicant
and her
mother and returned the stolen goods found in their possession to the
store. She testified that the applicant gave a false
name, asked if
her mother could not take the blame, was very nervous and asked not
to be detained. At the police station, she repeated
her plea not to
be arrested and asked if her mother could not take the blame. Her
repeated request to find another way of dealing
with it rather than
arresting her made SV wonder why she was so persistent about this
issue. This evidence was not contested.
[5]
Colonel M Dyers was the station commander at Mowbray SAPS where Bam.
Bam did not report for work on the Monday after her
arrest and
Colonel Dyers first learnt of her arrest from Parow police station
later in the day. Bam did not open up to her about
what happened when
she was compiling a disciplinary report. She testified she could not
trust her on account of the serious nature
of her misconduct.
[6] The third
witness was a security officer at the store, Ms P Zinqxondo
(‘Zinqxondo’). She saw Bam and her mother
loading items
from a store trolley into a black and white bag and a baby bag. At
the till they only paid for certain items and
did not pay for
anything in the bags. The alarm went off when they left the store and
Zinqxondo found unpaid for store items in
the bags. Bam gave her name
as Suzette Karelse, the name of a singer. Bam begged her to let them
go and offered to draw R 1,000-00
to pay for the stolen items. The
alarm had been activated by unscanned tags on meat packets. She
remembered that Bam and her mother
had a navy bag (a non-branded
shopping bag) and a black and white bag. They had one Checkers bag as
well when they were leaving
the store. She denied they had any Cash
Crusader or Game plastic bags as claimed by Bam
[7]
Bam testified she and her mother had gone shopping on the day. While
she had been busy changing her baby’s nappy
in the car, an
unknown man sold her mother something. She was unaware of this
transaction at the time and was drowsy from medication
she was
taking. She claimed that when they entered Checkers the alarm went
off. This allegation was not canvassed with Zinqxondo
when she was
cross-examined by Bam’s attorney. The security officer did not
look in the two bags they were carrying but taped
the baby bag and a
Game and Cash Crusaders packets, containing inter alia globes (not in
the list). Zinqxondo testified that she
never saw any Game or Cash
Crusaders packets.
[8]
The alarm went off when they exited after buying some groceries. When
Zinqxondo emptied the bags in a trolley, she found
the meat her
mother had bought from the stranger. Bam testified that this was the
first time she became aware of her mother’s
purchase. Zinqxondo
made a list of the stolen goods and according to Bam she included
items they had paid for to build a stronger
case against them. Bam
denied she had identified herself as ‘Suzette Karelse’.
Rather it was her mother who identified
her this way. The appellation
had been Bam’s nickname as a child on account of her singing.
Zinqxondo had testified that
all the items which were emptied from
the bags were scanned by her at a till to obtain the prices, which
appear on the annexure
to the SAPS 299 form which records the stolen
property returned to the owner. Zinqxondo also testified that the
goods found in
the two bags amounted to over R1,000-00, including the
meat items mentioned. These were all listed in the annexure to the
SAPS
299 form. She agreed under cross-examination that the number of
items stolen which was a factor in deciding whether to accept and
admission of guilt fine.
[9]
Bam’s mother testified that she had bought meat items from a
stranger for R 50-00 while her daughter was busy with
her baby.
According to the list of returned stolen goods, the value of fresh
meet items came to about R 440-00. She felt sorry
for the man who
begged her to buy the goods and did not have a proper look at them.
He emptied the goods into her black and white
handbag. Then they went
and shopped at Game, before going to Checkers. She denied they stole
anything from Checkers.
The arbitrator’s
findings
[10]
In summary, the arbitrator found that:
10.1
Vergotini’s evidence of Bam’s involvement was clear. Bam
did not dispute her evidence of the list of
stolen items Zinqxondo
handed to Checkers.
10.2 At the
time of the incident, Bam had not made any claim made that some goods
found in the bags were from Cash Crusaders
or Game. Zinqxondo
corroborated Vergotini’s evidence there were no plastic bags
from Cash Crusaders or Game.
10.3 It was
Bam who had used a false name when confirming disposal of stolen
property.
10.4 Dyer’s
evidence on the breakdown of the relationship was not really
contested by Bam.
10.5
Zinqxondo was honest and admitted not being able to see what Bam and
her mother loaded from the trolley into their
bags. She accepted that
Bam had begged Zinqxondo to release her so she could draw R 1,000.00
from an ATM. It was unlikely she would
fabricate evidence in such
detail.
10.6 Bam did
not dispute that Zinqxondo had returned the Checkers packet
containing the items they had paid for together
with the slip.
10.7 Bam did
not dispute that it was the meat packets which triggered the alarm.
10.8 Bam’s
version was based on simple denial.
10.9
Zinqxondo had no motive to falsely implicate Bam by adding items to
the list of stolen ones. The list of items
provided by her when the
goods were returned to Checkers was not disputed by Bam or her mother
at the time as comprising all the
stolen items. It was unlikely that
Bam would have given her written consent to the return of the goods
listed to Checkers without
a protest. In passing, it should be noted
that Bam did not consent in her own name, but signed as ‘S
Karelse’.
10.10
Bam’s mother contradicted herself on the shops they visited and
what she had told Bam about her purchases
from the stranger. She
could not explain where the additional stolen items came from if it
was only meat she bought from the stranger.
10.11
Bam and her mother’s evidence on whether or not Bam still used
the nickname “Suzette Karelse”
was contradictory.
[11]
The arbitrator concluded that the employer’s version was more
probable and that Bam had fabricated her version
of the theft and why
the name “Suzette Karelse” came to be used on the
occasion.
[12]
The arbitrator found her transgressions were serious and warranted
her dismissal.
Review grounds
[13]
Bam raised a number of grounds of review, which are summarised below.
[14]
Before dealing with those it is necessary to address another feature
of her founding and supplementary affidavits. In
both she makes a
number of factual allegations which were not part of the evidence
before the arbitrator. To cite just one example,
she goes into detail
about the nature of the medication she was on at the time of the
incident to supplement her evidence in the
arbitration. This is
simply unacceptable in a review application.
[15]
Save in situations where the alleged misconduct of an arbitrator is
not evident from the record of the arbitration and
the award itself,
no party can lead additional evidence to advance its case in the
review proceedings. To allow this would confound
the very foundation
of a review which is an evaluation of the reasoning and, or
alternatively the conduct of the arbitrator in
relation to the
evidence before them, or to events occurring during the conduct of
the proceedings. In the case of grounds of review
relating to the
conduct of the arbitrator, which does not appear on the record
itself, it follows that evidence of the events in
question will have
to be set out in the founding and supplementary affidavits.
[16]
However, the reviewability of an award based on alleged flaws in the
arbitrator’s assessment of the case before
them cannot be based
on the introduction of fresh evidence that was never placed before
them. What is astonishing is that the founding
affidavit containing
this supplementary ‘evidence’ was settled by Bam’s
original attorneys of record. It is incomprehensible
why they filed
an affidavit tendering such patently impermissible allegations for
the purpose of augmenting the evidence adduced
in the arbitration
proceedings. It is hardly necessary to confirm that all these
allegations have been disregarded for the purposes
of the review
application.
[17]
Leaving those impermissible grounds aside, Bam did raise the
following permissible grounds of review, namely:
17.1 Bam had
subpoenaed Zinqxondo to subject her to further cross-examination to
test her credibility, but the arbitrator
had refused to allow
additional cross-examination. She claimed that additional
cross-examination to test Zinqxondo’s credibility
should have
been allowed because she could not know on what grounds to challenge
her evidence until she had testified for the Rx
and she had motivated
why Zinqxondo had contradicted herself.
17.2 The
arbitrator’s finding that the trust relationship had broken
down could not be justified in view of her
own evidence that she was
not guilty of misconduct.
17.3 The
arbitrator failed to consider the issue of whether Bam had the
intention to provide a false name, and in the
absence of having such
intent she could not have been found to be dishonest.
17.4 The
arbitrator erroneously characterised her defence as one of “
mere
denial
”.
17.5 The
arbitrator failed to appreciate that only herself, her mother and
Zinqxondo could provide direct testimony
in respect of the
shoplifting charge and accordingly, should have preferred her and her
mother’s version on those events.
Evaluation
[18]
During the arbitration hearing, in motivating why Zinqxondo should be
recalled, Bam claimed that her attorney had failed
to cross-examine
the security officer on allegedly contradictory evidence she had
given at the disciplinary enquiry even though
he had the record of
the disciplinary enquiry and despite her instruction to him to do so.
The other reason she advanced for needing
to recall her was to get to
the truth of what transpired on the day in question.
[19] When pressed
to explain what the alleged conflicts between Zinqxondo’s
evidence at the enquiry and arbitration
were, she identified the
following:
19.1 She had
estimated Bam’s toddler’s age at the enquiry as six or
seven years’ old whereas her child
was two and a half years old
at the time.
19.2 In the
enquiry she had said the child was walking alongside her mother,
whereas in the arbitration she said she
was standing in the shopping
trolley.
19.3 She had
consistently said they had two shopping bags, but Bam had the bags
with her and wanted to question her
about that.
19.4 In the
enquiry she had said she had stopped them leaving the store on her
own, whereas she said at the arbitration
that she was accompanied by
a man who had stopped them and handed them over to her.
19.5 In the
enquiry she had denied Bam had told her that certain items had been
bought outside at other stores whereas
in the arbitration hearing she
recalled Bam had said something to that effect.
19.6
Vergotini had testified that there were wet wipes in the blue baby
bag, but that Zinqxondo said there were none.
19.7
Zinqxondo also needed to clarify where she said Bam and her mother
were standing when she claimed to have seen
them taking items from
the trolley and putting them in the bags.
[20]
The first point to be made is that the reason Bam wished to recall
the witness was purely to impugn her credibility by
dealing with
alleged inconsistencies between what the witness allegedly said in
the disciplinary enquiry and in the arbitration
proceedings, and
between her testimony and that of Vergotini. None of the alleged
inconsistencies could have altered the evidence
of the unpaid goods
which were found in the bags of Bam and her mother. In relation to
whether or not Bam identified herself by
her nickname, there was the
evidence of Vergotini and the contemporary documentary evidence which
supported the version that she
did indeed do so. Moreover, even if it
was plausible to conclude that only the fresh meat items found in the
bag were the unpaid
for ones, that would not materially alter the
finding of guilt, as the highly contrived version of the stranger who
hurriedly sold
more than R 400-00 worth of meat for R 50-00 was so
inherently implausible in any event. It would have requires truly
exceptional
circumstances to have permitted further cross-examination
of the witness to impugn her credibility when all the information
required
to do so had been before Bam and her attorney at the time
she was originally cross-examined. The respondent could not be
subject
to the disadvantage of having its witnesses recalled because
of alleged oversights of Bam’s representative, which were not
excusable ones. To permit such prolongation of proceedings, which are
at odds with the practice norms for adducing evidence, would
be to
invite the prospect of never-ending hearings. I cannot find the
arbitrator at fault for not permitting the witness to be
cross-examined twice.
[21]
The claim that the arbitrator erred in accepting evidence that the
trust relationship had broken down is premised on
the assertion that
she did was not guilty of the misconduct. As the finding that she was
guilty was more than plausible, this ground
of review falls away.
[22]
In relation to the contention that the arbitrator allegedly failed to
consider the if Bam had the intention to provide
a false name, the
first point to be made is that Bam did not admit to doing so in the
first place. In so far as this is an alternative
line of attack,
based on an assumption that she had identified herself using a false
name, the decision to do so must have been
a conscious one on Bam’s
part, bearing in mind that she even wrote that name confirming the
return of goods to Checkers.
In the circumstances, the arbitrator was
perfectly entitled to assume she had done so deliberately. Moreover,
because Bam’s
actual defence was that it was her mother who
proferred that false identity on her behalf, there was no reason for
the arbitrator
to have considered if Bam had somehow done so
‘negligently’..
[23]
It is true the arbitrator characterised Bam’s defence as one of
“simple denial”. However, it is clear
that the arbitrator
nonetheless weighed up both versions in the light of the evidence, so
this statement had little bearing on
her actual analysis of Bam’s
version.
[24]
Regarding, the arbitrator’s failure to prefer Bam and her
mother’s version of the shoplifting incident, the
arbitrator
clearly did find Zinqxondo a credible witness. Faced with the
contrived and inherently implausible version provided
by Bam and her
mother, the arbitrator cannot be said to have made a finding on this
that no other reasonable arbitrator could have
arrived at.
[25]
In light of the analysis above, the review application must fail.
Order
1.
The application to review the arbitration award of
the Third Respondent issued on 8 February 2017 under case number PSSS
394-15/16
is dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances
For the Applicant
J
Brunsdon of Brunsdon Attorneys Inc
For
the Third Respondent
L
Dzai instructed by the State Attorney (Cape Town)