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[2025] ZALCCT 11
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South African Police Services v Safety and Security Sectoral Bargaining Council and Others (C98/2022) [2025] ZALCCT 11 (18 February 2025)
FLYNOTES:
LABOUR
– Dismissal –
Police
misconduct –
Serious
charges and conduct – Arbitrator reinstating employee with
final written warning and suspension without pay
–
Evaluation of sanction – Procedural unfairness –
Refusing employee representation by chosen representative
–
Providing only three hours to find an alternative in expedited
proceedings – No justifiable reason why enquiry
had to
proceed without postponement – Decision unreasonable –
Dismissal fair – Awarded four months compensation.
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Of interest to other
judges
case
no: C 98/2022
In
the matter between:
SOUTH
AFRICAN POLICE SERVICES
Applicant
and
SAFETY AND SECURITY
SECTORAL
BARGAINING
COUNCIL
First Respondent
MAUREEN
DE BEER (
N.O.
)
Second Respondent
CIKISWA
ANTOINETTE MANGALISO
Third Respondent
Heard
:
13 February 2025
Delivered
:
18 February 2025
Summary:
(Review – Employee guilty of
serious misconduct – Arbitrator reinstating employee with final
written warning and period
of suspension without pay –
evaluation of sanction on review – Procedural unfairness –
refusing employee representation
by chosen representative and
providing three hours to find an alternative in expedited
proceedings)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an opposed application to review and set aside an arbitration
award in which the arbitrator found that SAPS had
acted procedurally
and substantively unfairly when it dismissed the third respondent, Ms
C Mangaliso (‘Mangaliso’),
for misconduct. The arbitrator
found her guilty of the misconduct she was dismissed for but found
the sanction of dismissal was
unfair and reinstated her, subject to a
final written warning and denying her a period of about nine months’
backpay in view
of her misconduct.
[2]
SAPS was late in filing its review application and has applied for
condonation. The condonation application was unopposed.
[3]
The transcript of the arbitration proceedings was not filed, but both
parties were amenable to the application being determined
on the
basis of the factual narrative set out in the arbitrator’s
lengthy award. Material facts pertinent to the review application
were not in dispute.
The
condonation application
[4]
The award was handed down on 2 September 2021, which was varied on 8
November 2021 mainly to correct a patent omission
in the relief
awarded. The review application was filed on 7 March 2022. It should
have been filed on 20 December 2021, so it was
about 77 days or 11
weeks late, nearly three times longer than it should have taken,
which is very excessive.
[5]
Owing to the applicant’s seven stage standard operating
procedure for approving the initiation of review proceedings,
it took
until 24 December 2021 for the National Commissioner to approve the
launching of the application. It was already out of
time by then.
Owing to the annual shutdown, nothing was done until 17 Jan 2022, at
which point the matter was handed to the state
attorney. It took
another month to appoint counsel following a mandatory bidding
process. Once counsel had been appointed in mid-February,
it took a
fortnight to finalise the papers.
[6]
It is trite that an applicant cannot work on the premise that its own
internal processes can operate at their own pace,
irrespective of the
pressing need to file the review application timeously. However,
given that about a month of the delay is attributable
to the annual
shutdown, which is a period the LAC has recognised as ordinarily
being one in which normal work routines are disrupted,
and given that
there were no other lengthy periods of inactivity in processing the
application, I accept that the applicant pursued
the application at a
steady if somewhat plodding pace. Accordingly, the explanation is
acceptable, and the late filing should be
condoned.
Factual background
[7]
Mangaliso, a police
sergeant, was dismissed after being found guilty of a number of acts
of misconduct listed in Regulation 5(4)
of the SAPS Discipline
Regulations
[1]
. The charges
arose from an incident which occurred during the Covid-19 pandemic.
In summary, all the charges concerned breaches
of unlawfully
releasing her adult foster child (‘Nosisi’) from police
custody
[2]
, defeating the ends
of justice
[3]
, and interfering
with a police officer performing their duty by obstructing the
processing of her foster child as an arrestee
[4]
,
detrimentally affecting the image of the police
[5]
by
removing her foster child from the company of other women she was
arrested with and for breaching the covid Disaster Management
Regulations
[6]
11B(a)(i)
[7]
.
[8]
Police, who were on patrol, had arrested Mangaliso’s adult
foster daughter in the street for breaching the DMA regulations,
which at the time restricted the free movement of persons. She was
taken in a van to the police station together with other persons
who
had been apprehended for the same reason. Mangaliso got wind of the
arrest and went to the police station.
[9]
The arbitrator found that the arrest of Nosisi was lawful, contrary
to Mangaliso’s contention. She found that when
the van arrived
at the police station, Mangaliso spoke to Nosisi when she exited the
van and told her to leave. Mangaliso said
he had told Nosisi, a car
was waiting for her outside. The arbitrator found that on Mangaliso’s
own version she interfered
with the work of her colleagues, by
instructing Nosisi to leave when she was in the custody of arresting
police officers.
[10]
The result is that Nosisi was simply released and her arrest was not
processed as should have been the case in terms
of police operating
procedures. The arbitrator also found that Mangaliso’s action
had led to complaints from the other arrestees
about Nosisi’s
preferential treatment. In addition, by coming to the police station
instead of remaining at home, Mangaliso
had failed to confine herself
to her residence in contravention of Regulation 11B(a) (i) of the DMA
regulations.
[11]
In relation to procedural fairness, the arbitrator did not accept
that the disciplinary enquiry chairperson should have
prevented
Mangaliso’s chosen representative from appearing because he had
not been released from duty as a full-time shop
steward and had not
been locally elected. Although the chairperson had given Mangaliso a
few hours to find an alternative representative,
the person she
obtained was not prepared to represent her.
[12]
The arbitrator found it was unfair, given the serious charges of the
chairperson to deny Mangaliso the assistance of
a shop steward who
was ready and able to assist her. It was also unfair of the
chairperson only give her three hours to find
an alternative
representative, given the seriousness of the charges. In the
circumstances, she ought to have postponed the enquiry.
Accordingly,
the arbitrator concluded that the manner in which she conducted the
expeditious process was inappropriate and procedurally
unfair.
[13]
The arbitrator decided that the substantive question was whether
dismissal was an appropriate sanction.
[14]
The arbitrator reason that, even though Managaliso had prevented
Nosisi from being processed, none of the persons arrested
with her
were ultimately held in custody but were issued with fines instead.
Nosisi was also fined the following day. This was
not a situation in
which Mangaliso had assisted someone to escape from the police to
evade justice. In the circumstances, a final
written warning would
have been fairer given her eleven years of service.
[15]
The arbitrator concluded that the employment relationship was
tarnished but not destroyed. She ordered the retrospective
reinstatement of Mangaliso, but subject to a final written warning
valid for six months after her return to work. Because
she
found her guilty of the misconduct, the arbitrator reduced the amount
of backpay that would be due to Mangaliso by about 7
months.
Grounds of Review
[16]
SAPS raised a number of grounds of review, which may be summarily
expressed as follows:
16.1 The
arbitrator failed to take account of Item 4(1) of the Code of Good
Practice governing Dismissals.
16.2 The
arbitrator misconstrued the relevance of Mangaliso’s long
service of eleven years.
16.3 The
arbitrator failed to consider the fact that Mangaliso expressed no
remorse for her conduct.
16.4 The
arbitrator failed to consider the gravity of the misconduct Mangaliso
had committed and failed to appreciate
such misconduct ought to have
resulted in her dismissal.
16.5 The
arbitrator placed the employee’s interest above that of the
employer in assessing the fairness of the
sanction
16.6 Instead
of deciding if SAPS decision to dismiss Mangaliso was substantively
fair, the arbitrator decided what she
would have done in the
employer’s place.
16.7 The
arbitrator also failed to consider that a failure to comply with a
disciplinary procedure, in and of itself,
does not necessarily mean
that the failure was unfair, in the absence of the employee being
able to demonstrate any prejudice,
which was not the case in this
instance.
[17]
SAPS contends that these shortcomings meant that the arbitrator’s
findings on substantive and procedural fairness
were ones no
reasonable arbitrator could have arrived at.
The arbitrator’s
decision on the substantive fairness of the dismissal.
[18]
The crux of the review clearly concerns whether the arbitrator’s
decision that Mangaliso’s dismissal was
unfair despite her
being guilty of serious misconduct, and whether the alternative
sanction she imposed was appropriate.
[19]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[8]
,
the Consitutional Court crystalised the duty of an arbitrator when
determining the fairness of a dismissal:
“
[78]
In approaching the dismissal dispute impartially a commissioner will
take
into account the totality of circumstances
.
He or she will
necessarily
take into account
the
importance of the rule
that had been breached. The commissioner must of course
consider
the
reason the employer imposed the sanction
of dismissal, as he or she must take into account the
basis
of the employee’s challenge to the dismissal
.
There are other factors that will require consideration. For
example,
the
harm caused by the employee’s conduct
,
whether
additional training and instruction may result in the employee not
repeating the misconduct
,
the
effect
of dismissal on the employee and his or her long-service record
.
This is
not
an exhaustive list
.
[79] To
sum up. In terms of the LRA, a commissioner has to determine whether
a dismissal is fair or not
.
A commissioner is not given the power to consider afresh what he or
she would do, but simply to decide whether what the
employer did was
fair
.
In
arriving at a decision a commissioner is not required to defer to the
decision of the employer.
[9]
The arbitrator had
considered if the dismissal was an
appropriate
sanction.”
(emphasis
added)
[20]
In considering the harm caused by Mangaliso’s conduct, the
arbitrator took a narrow view, even though she had found
her guilty
of detrimentally affecting the image of the police. The arbitrator
seemed to be of the opinion that because the other
arrestees were
ultimately not detained and that all of them, including Notisi, were
fined, therefore they were all treated equally,
and so no real harm
was done.
[21]
The difficulty with the arbitrator’s approach is that it
ignores the glaring disparity of treatment they received
when they
arrived at the police station. Notisi was instantly allowed to leave
the van and was immediately separated from the other
arrestees on
their arrival at the police station. It was plainly evident to them
that her preferential treatment took place as
a result of an
intervention by someone with a personal connection with Notisi, who
was able to usurp the authority of the arresting
officer, and exempt
Nosisi’s from the completion of the arrest procedure. It may be
so that Notisi was subsequently fined,
but it is difficult to believe
that the other arrestees would have come away from that incident
believing that SAPS treats all
suspects equally. Moreover,
there was no evidence the other arrestees would have learnt that
Nosisi was subsequently issued
with a fine.
[22]
Secondly, on the important question of preserving the trust
relationship, the arbitrator had found that it had been tarnished,
but could be restored and it would not be intolerable to reinstate
Mangaliso. In arriving at this conclusion, the arbitrator made
no
reference to the prospect of Mangaliso abusing her position again in
the future. What was before the arbitrator was a warrant
officer of a
number of years’ experience, who had defended her actions on
the basis that she believed that the arrest of
Nosisi was invalid for
one or more reasons, and therefore she was entitled to intervene on
Nosisi’s behalf even if this meant
interfering with another
policeman in the exercise of his duties as an arresting officer.
There is nothing in the award that suggests
Mangaliso acknowledged
that it was not her place to determine whether the arrest was lawful
nor that she ever conceded that she
should have simply waited for
Nosisi’s arrest to be processed because she had no right to
intervene in the arrest procedures
owing solely to her personal
connection with the arrestee. It is difficult to understand on what
basis the arbitrator could have
believed that Mangaliso would act
differently in similar circumstances in future. Was it tenable to
believe that Mangaliso would
not abuse her authority again in future
if she had a personal interest in the conduct of police business? In
the absence of the
slightest admission of wrongdoing, or even an
acknowledgement that what she had done was completely inappropriate,
it seems unreasonable
to just assume she would not abuse her position
and interfere with the work of other police if it was in her interest
to do so.
Mangaliso’s rank and length of service made her
conduct more serious, as she could reasonably have been expected to
know
not to interfere in another police member’s performance of
their duties, especially for personal reasons.
[23]
It is understandable that Mangaliso would have been concerned to
learn of Nosisi’s arrest, just like any other
person who hears
of the arrest of a relative or friend would be. However, she knew
what the arresting officer’s responsibilities
were in
finalising the arrest process at the police station and that it was
not her place to interfere. If she had merely spoken
to Nosisi when
she alighted from the van, she could have conveyed that she was there
to support her and would wait for her, but
she directly interfered to
prevent her arrest process being completed.
[24]
It is true that Mangaliso had a clean disciplinary record, and that
the impact of the dismissal on her would be serious,
but in the light
of the factors discussed above, it seems very unlikely any reasonable
arbitrator could come to the conclusion
that SAPS’ decision to
dismiss her was obviously an unfair one to take. The fact that the
arbitrator would have imposed a
more lenient sanction had she been
the employer does not mean she was entitled to find the employer’s
decision unfair. It
is sometimes a difficult to sometimes make, but
it is important to bear in mind that it is the arbitrator’s
responsibility
to first determine if the employer’s decision
was substantively fair. If not, then the arbitrator can consider what
would
be a more appropriate lesser sanction. The two enquiries are
distinct, even though they can easily be conflated.
The arbitrator’s
decision on the procedural unfairness of the dismissal.
[25]
As SAPS argues, it is
trite law that the mere fact a disciplinary procedure is not
followed, does not ineluctably lead to the conclusion
that the
dismissal was unfair
[10]
.
The primary consideration is whether there was some demonstrable
prejudice suffered by the employee as a result of the procedural
deviation. In some cases, assessing any prejudice might be easy, such
as where an employee is denied access to a relevant document
which
could materially have affected their case. In other instances,
such as this one, it may be difficult to demonstrate
that rectifying
the omission would necessarily have impacted on the outcome.
However, the courts long ago abandoned the so-called
“no
difference” principle
[11]
,
which held that a procedural defect was irrelevant if it would not
have affected the outcome.
[26]
There are certain
requirements of a fair hearing which are considered important enough
to have been included in the Code of Good
Conduct: Dismissal
[12]
.
One of those is the right to be assisted by an employee
representative. In this instance, Mangaliso had arranged to be
represented
by a shop steward, but the chairperson disallowed the
representative to appear, apparently because his appointment was not
made
in accordance with an agreement
inter
alia
about
where the representative was based. Assuming that was a legitimate
disqualification, the question arises whether the chairperson
acted
fairly in giving Mangaliso to find someone locally and then not
agreeing to postpone the enquiry when it became apparent
three hours
later she had not been able to arrange someone was willing and able
to represent her that day. As a result, the hearing
proceeded without
Mangaliso being represented.
[27]
The arbitrator’s view that this was procedurally unfair, is
difficult to fault. Mangaliso was facing serious charges
and just
because she was unable, at short notice, to find a substitute for the
representative she had arranged, she was deprived
of a proper
opportunity to find a substitute. This was not a case where she had
been the cause of endless postponements and there
was no reason
advanced why it could not be postponed just once for the purpose of
her finding another representative. The arbitrator’s
conclusion
that this was procedurally unfair is one that another reasonable
arbitrator could have reached. It is accordingly necessary
to
consider an award of compensation. In the circumstances of the
seriousness of the charges, the fact that it was not Mangaliso’s
fault that her chosen representative could not appear and that there
appeared to be not justifiable reason why the enquiry had
to proceed
without postponement, particularly as the employer’s case was
made out witness statements, I believe an appropriate
award would be
four months’ remuneration.
Costs
[28]
As Mangaliso had been successful in the arbitration hearing and
considering the importance of the award to her, it would
not be fair
to award any costs against her for defending the award. Moreover, the
employer has not been wholly successful. There
is no reason in my
mind to depart from the usual principle of not making any cost award
in the circumstances.
Order
1.
The late filing of the review application is
condoned.
2.
The finding of the Second Respondent in the
arbitration award in case number PSSS 68-20/2 issued on 2 September
2021, and varied
on 8 November 2021, that the Third Respondent’s
dismissal was substantively unfair is reviewed and set aside and
replaced
with a finding that it was substantively fair.
3.
The relief awarded in paragraphs 63 to 65 of the
award, is replaced with the following:
4.
“
The respondent must pay the applicant an
amount of four (4) months remuneration as compensation for her
procedurally unfair dismissal.”
5.
The payment in paragraph 4 above must be made
within 30 days of this order.
6.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
M Rantho instructed
by State Attorney Cape Town
For the
Respondent:
C May from BDP Attorneys
[1]
GN R1361 in GG 40389 dd 01/11/2016.
[2]
Aiding
an escapee (regulation 5(4)(a)).
[3]
Regulation
5(4)(h).
[4]
Attempting
to commit an offence warranting the institution of the expeditious
disciplinary procedure provided in regulation 9.
[5]
Regulation
5(4)(x)
[6]
Gazette 43148, Gazette 43168, Gazette 43199, Gazette 43232 and
Gazette 43240) (as amended by Gazette 43168 of 26 March 2020 and
Gazette 43199 of 2 April 2020, Gazette 43232 of 16 April and Gazette
43240 of 20 April 2020
[7]
Viz: “
Restriction
on the movement of persons and goods
11
B. (1 )(a) For the period of lockdown-
(i)
every person is confined to his or her place of residence, unless
strictly for the purpose of performing an essential service,
obtaining an essential good or service, collecting a social grant,
pension or seeking emergency, life-saving, or chronic medical
attention;…”
[8]
(2007) 28
ILJ
2405
(CC)
[9]
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT
85/06)
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC)
; (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) (5 October 2007)
[10]
See
e.g
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO & others
(2010)
31
ILJ
901
(LAC) at paragraph 41 and
Rand
Water Board v Commission for Conciliation, Mediation &
Arbitration & others
(2005)
26
ILJ
2028
(LC) at paragraph 9.
[11]
See
SA
Clothing & Textile Workers Union & another v Martin Johnson
(Pty) Ltd
(1993)
14
ILJ
1033 (LAC)
[12]
Item 4 of the code reads:
“
Fair
procedure
(1)
Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal. This does not
need to be a
formal enquiry. The employer should notify the employee of the
allegations using a form and language that the employee
can
reasonably understand. The employee should be allowed the
opportunity to state a case in response to the allegations. The
employee should be entitled to a reasonable time to prepare the
response and to the assistance of a trade union representative
or
fellow employee. After the enquiry, the employer should communicate
the decision taken, and preferably furnish the employee
with written
notification of that decision.”