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[2025] ZALCCT 12
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South African Police Services v Safety and Security Sectoral Bargaining Council and Others (C543/2022) [2025] ZALCCT 12 (24 February 2025)
FLYNOTES:
LABOUR – Dismissal –
Police
misconduct
–
Administrative
staff member – Attempting to take cellphone from arrested
suspect who was her boyfriend – Arbitrator
reinstated
employee with final written warning – Had employee
succeeded, consequence would have been inimical to the
investigation – Arbitrator’s finding that the trust
relationship remained intact, if “tarnished”
had no
foundation in the evidence – Finding replaced with one that
dismissal was substantively fair.
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Not Reportable/Of
interest to other judges
Case
No: C 543/2022
In
the matter between:
THE
SOUTH AFRICAN POLICE SERVICES
First
Applicant
and
THE
SAFETY & SECURITY SECTORAL BARGAINING COUNCIL
First
Respondent
MAUREEN
DE BEER (
N.O.
)
Second
Respondent
POPCRU
obo NOKUTHULA CEKI
Third
Respondent
Heard
:
19 June 20224
Delivered
:
24 February 2025
Summary:
(Review application – Arbitrator
misconstruing disciplinary charge and ignoring element of intent - No
basis laid for arbitrator
concluding that dismissal was an unfair
sanction – Award set aside)
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.
Condonation
[2]
The award was issued on 16 May 2022 and the review application ought
to have been launched by 27 June 2022 but was only
brought on 7
November 2022, resulting in it being late by over four months.,
[3]
Between 7 June to 7 July 2022 there was a slow but steady
accumulation of internal recommendations made within the SAPS
bureaucracy to take the award on review. That process ground to a
halt from 7 July to 31 August while the matter waited for a decision
from the National Commissioner. Why only the National Commissioner
could take a decision on whether to review an arbitration award
about
the dismissal of a junior police official is hard to understand. It
begs the question why this is not a matter which is delegated
to
another senior police officer, especially given all the senior staff
who had already considered the merits of the application
and
recommended it should proceed. The decision itself ought to have been
capable of being taken within a week or two of the National
Commissioner having had sight of the documents and recommendations.
Instead, it languished in the national commissioner’s
office
for nearly eight weeks.
[4]
On 31 August, the review was in the hands of the state attorney, who
promptly set in motion the process of obtaining tenders
from
advocates to bid for the work. Within fourteen days counsel had been
appointed, but the process faltered because counsel could
not consult
on the matter until 30 September owing to diary conflicts between
counsel and the state attorney. Thereafter, counsel
could not deal
with the application until 17 October and the application was only
filed about three weeks later.
[5]
The prolonged delay at the National Commissioner’s office was
unacceptable as was the added delay of about a month
before the
counsel, who had tendered for and was awarded the brief, could
actually attend to the matter. It should not be necessary
to point
out that there was also no reason why it should have taken SAPS so
long to file the notice of motion and founding affidavit
because the
grounds of review raised in the founding affidavit can be completely
amended when a supplementary affidavit is filed.
Consequently, there
is no reason to strive for a comprehensive review application when it
is initially launched. There is also
no reason why, counsel should
not have been able to have drafted the founding papers within three
weeks of receiving the brief
given the provisional nature of the
application at that stage.
[6]
All in all, there is a period of nearly three months for which no
explanation was forthcoming. If this was the only weighty
consideration, it would be arguable there is little reason to condone
the delay. However, SAPS did commence its evaluation of the
award
within about a fortnight of obtaining the award and there is nothing
to suggest that there was wilful neglect on the part
of SAPS
hierarchy or its counsel which led to the delay.
[7]
Despite the unexplained delays, I believe that the merits of the
matter warrant the application being heard, but as a
mark of the
court’s displeasure over the inaction in the National
Commissioner’s office, it is appropriate to award
the third
respondent the costs of opposing the condonation application. The
full evaluation of the merits follows.
The charges and elements
of the evidence
[8]
The applicant, Ms N Ceki (‘Ceki’) was dismissed after
being charged and found guilty of 3 forms of misconduct
all arising
on 16 January 2019, which concerned her interactions with a group of
suspects arrested on suspicion that they were
implicated in an ATM
robbery. At the time, she was the secretary of the Stellenbosch SAPS
station OC and was an administrative
staff member, not a police
member of the SAPS. She was accused of taking, or attempting to take,
the cell phone of one of arrested
suspects and of attempting to
create an alibi for the suspects, whom she was familiar with. It was
alleged, by so doing, that she
had interfered with the justice
process, prejudiced the interests of the SAPS, and conducted herself
in an improper and disgraceful
manner in breach of the Public Service
Code.
[9]
When the arresting officer, Captain Williams (‘Williams’)
was drafting his arresting statement in the boardroom,
she asked what
the suspects were arrested for. He testified that when he told her
that it related to an ATM theft in Stellenbosch
and that the hire
vehicle they were driving was visible on CCTV footage, she mentioned
that the hire car vehicle allegedly used
in the robbery was in
Mbekweni the entire day when the robbery took place. Williams said he
did not know how she would have come
to know such information. Ceki
denied mentioning this.
[10]
Williams also testified that she asked if she could get their
personal belongings and he told her she could collect their
belts and
shoelaces, but never said she could take the cell phones. He told her
to go to the Community Service Centre (‘CSC’)
where
members were busy with the suspects.
[11]
When he subsequently heard that she had still attempted to take the
phones, he found that suspicious and, on the instruction
of the
station commander, he opened a criminal case against her. The
criminal case was ultimately dismissed. Williams also testified
she
had no need to be at the station at the time and was not supposed to
be there. Another witness testified that Ceki had accompanied
the
police and the suspects to the cells, without having any reason to be
there and that she had remained at the cells where the
suspects were
being held.
[12]
Other testimony was led that Ceki came and stood at the entrance of
the Person Identification Verification Application
(‘PIVA’)
room when the suspects were having their fingerprints taken, and she
spoke to them in isiXhosa. She took a
cell phone from one suspect but
was ordered to hand it back to the investigating team because it was
an exhibit in the case. All
the SAPS witnesses in the arbitration
were puzzled by her interest in the matter and that she was only
interested in taking the
cell phone of one of the suspects whereas
all four of them had phones.
[13]
When the suspects were removed to the cells, Ceki followed them and
stood beneath the cells at the cell window. There
was no reason why
she would have been hanging around at the PIVA room or the cells. No
part of her duties required her to be present.
[14]
Her evidence was that one of the suspects, Mr M Paulos (‘Paulos’),
had phoned her and said he and the other
suspects had been arrested
on the way to the airport. He had asked her to come to the police
station to find out the reason for
their arrest. He asked her to
inform their families and arrange a lawyer. Ceki claimed she related
this to Williams at the station
and that she had been requested to
collect their belongings. Wiliams told her that the vehicle the
suspects used was involved in
a crime incident and he told her they
were in the PIVA room. She found them at the PIVA room and spoke with
Paulos, who said they
had not been told why they were arrested. She
denied standing in the doorway of the PIVA room, which was occupied
by Gericke. She
also claimed she could not have attempted to take
phones from the suspects, as she was standing nine or ten paces from
the room.
She told Sergeant Van Louw (‘Van Louw’) she had
permission to collect their belongings, and he said she could. She
denied mentioning any cell phones or that she followed the suspects
when they were taken from the CSC to the cells. She waited until
she
was given an envelope with glasses and shoelaces in it.
[15]
She agreed that criminal charges were laid against her, but she was
acquitted sometime after criminal charges against
the suspects were
withdrawn. She testified that Paulos had been her “on-off”
boyfriend for a decade, and they had resumed
the relationship in
2019. She claimed to have been unaware of what he did in his private
time, which had nothing to do with her.
She was also ignorant that
gangs were involved in ATM robberies. She said she would never have
asked for the cell phones because
she knew the phones would normally
be used to gather information and would only be returned on a
suspect’s release.
The findings of the
arbitrator.
[16]
The arbitrator found no evidence of procedural impropriety was
presented so she could not find that there was any procedural
unfairness in the disciplinary process.
[17]
The arbitrator summarised the evidence thus:
“
[37]
In
respect of the respondent’s evidence Gericke
[1]
testified
that he saw Ceki taking a cell phone from a suspect. He never
mentioned who the suspect was. He was also unable to say
what type of
cell phone it was. It is also stated that Gericke gave a different
version, when he said the suspect reached out to
give the cell phone
and that he (Gericke) had to intervene, otherwise Ceki would have
been in possession of the cell phone. Gericke
told Gordon
[2]
that
Ceki wanted to take a cell phone of a suspect. She was never present
when this happened but testified that at the cells Ceki
asked for the
cell phones again. She felt that Ceki intervened (sic) with their
duties. She also confirmed that Ceki followed them
to the police
cells. Van Louw also testified that he assisted with the escorting of
the suspects to the cells; and that Ceki was
in between him and the
suspects. It was put to Van Louw that he was never mentioned by
Gordon or Gericke. Van Louw still insisted
that he was there.
According to Ceki’s evidence she never took a cell phone, nor
did she follow the suspects and the police
members to the cells.
[38] The standard of
proof that an employee committed misconduct is that of “balance
of probabilities”. In respect of
the evidence presented a
balanced assessment of the credibility, reliability, and probability
of the different versions must be
given. It is noted that in some
respects Gericke’s evidence was contradictory, street mistake
of the taking of the phone
was concerned. Gordon testified that upon
her arrival at the CSC she was informed by Gericke that Ceki intended
to take the cell
phone of one of the suspects. She also testified
that she was not present when the incident occurred. Gordon and Van
Louw both
testified that Ceki was constantly in the vicinity of them
and the suspects up until the time they went to the cells. At the
cells
Gordon indicated that Ceki again asked about the cell phones. I
am satisfied that Gordon was a reliable witness. Although neither
Gordon nor Gericke mentioned Van Louw's involvement with the
suspects, Van Louw testified about how Ceki was in his way when he
tried to assist with the escorting of the suspects to the police
cells. He even mentioned that Ceki took offence when he touched
her
on her arm to get past her. Gordon also mentioned that Ceki followed
them to the cells. Van Louw's evidence was basically in
respect of
Ceki's presence at the police station. I am also satisfied that Van
Louw was a credible witness. In taking into account
the totality of
the evidence of the respondent witnesses, I am satisfied that their
testimony supported each other’s versions
on a balance of
probabilities.
39. In her own evidence
Ceki indicated that she knew that cell phones were used for
investigation purposes. She had no witnesses
to support her testimony
that she never tried to take a cell phone. She was in a relationship
with one of the suspects and could
have him as a witness since he was
in the PIVA room when the incident occurred. Ceki basically denied
all the allegations against
her and was not a very credible witness.”
[18]
The arbitrator concluded it was highly probable
that Ceki had attempted to take a cell phone from one of the
suspects. However,
she also remarked that no further evidence was led
about the cell phones or why they were secured as exhibits and what
purpose
they served in the investigation of the criminal case against
the suspects.
[19]
The arbitrator then turned her attention to
whether Ceki had: done something to harm or prejudice the interests
of the state; conducted
herself in an improper, disgraceful or
unacceptable manner, or contravened a code of the service or the
public service by interfering
with the justice process. She found no
evidence was led of any code of the public service which Ceki might
have contravened or
how she had prejudiced the interests of the SAPS.
Ceki’s actions had no effect on the arrest of the suspects.
Nevertheless,
the arbitrator found Ceki's conduct was improper and
unacceptable because she used her privileges as an employee at the
police
station to enter the back of the station and obtain access to
the CSC and PIVA room areas. Although she had permission to obtain
some items from the suspects, she had no permission to take cell
phones from them.
[20]
The arbitrator also accepted that Ceki had told William about the
suspects’ vehicle being in Mbekweni (a township
near Paarl),
but there was no evidence that this claim was investigated nor
whether it was even relevant to the criminal case against
them. It
was not even shown that her claim was a lie. No evidence was led to
show the suspects were involved in such a robbery,
but all he said
was that there was video evidence of the vehicle, and it was a rented
one. She held that in order to show that
Ceki had attempted to create
a false alibi it was necessary to show the suspects were involved in
the ATM robbery.
[21]
The arbitrator concluded that the only misconduct she was guilty of
was of conducting herself in an improper and unacceptable
manner and
therefore was only guilty of the second charge.
[22]
On the question of how Ceki’s association with a known criminal
affected the employee-employer trust relationship,
the arbitrator
noted the evidence of the officer commanding the police station, who
was concerned that she was in a relationship
with a known criminal,
and that she had taken measures to prevent Ceki having access to
certain information. The arbitrator found
Ceki’s version that
she had no knowledge of her boyfriend’s doings highly unlikely
and that her conduct had affected
the employer-employee relationship.
Nonetheless there was no evidence that Ceki had attempted to conceal
or hide evidence by taking
the cell phone. Accordingly, even though
Ceki’s conduct was improper, she could not conclude that the
trust relationship
was irreparably broken.
[23]
In addition, the arbitrator considered that Ceki had 5 years’
service and had a clean disciplinary record, and
her conduct had
caused no harm to SAPS. Moreover, she continued to work for SAPS
while the investigation was continuing. Accordingly,
she reinstated
Ceki limiting her backpay to twelve months remuneration and subject
to her being issued with a final written warning
for acting in an
improper, disgraceful and unacceptable manner by attempting to take
the cell phone of a suspect without permission.
Grounds of review and
evaluation
[24]
Firstly, SAPS contends that the arbitrator misconstrued the charge of
harming the interests of the SAPS under Disciplinary
Regulation
5(3)(b)(i). It is not a requirement of the charge to prove that harm
was actually caused, because the misconduct is
described in the
Regulation thus:
“
An employee shall
be guilty of misconduct if he or she performs any act or fails to
perform any act with the intention to cause
harm to or prejudice the
interests of the Service, be it financial or otherwise.”
SAPS
points out that the arbitrator did not consider the question of
whether Ceki acted with the necessary intent when she acted
as she
did in attempting to retrieve a suspect’s cell phone. This was
central to the charge. It argues that such conduct
was intended to
hamper police investigations, noting that Ceki herself acknowledged
that cell phones are used to gather information
in the investigation
of cases.
[25]
Taken together with the evidence the arbitrator accepted, namely that
Ceki was not present at the station in the performance
of her work
and had insinuated herself into the company of the police and the
suspects, and was persistent in her attempt to obtain
a suspect’s
cell phone, the arbitrator would have been compelled to interpret
that Ceki’s conduct was committed for
the improper purpose
mentioned. It is noteworthy that the arbitrator also felt she had to
determine if the SAPS had shown that,
on this occasion, the cell
phones did in fact yield incriminating evidence. That is a question
quite irrelevant to the determination
of Ceki’s intent and
consequently her guilt on the first charge.
[26]
It follows that because the arbitrator misconstrued the first charge,
sher failed to consider a core element of the charge.
Had she not
made this error, she would have been compelled to find that Ceki most
probably acted with the improper motive in mind
and was guilty of
that charge.
[27]
Secondly, SAPS argues that the arbitrator’s reasoning about
whether Ceki had attempted to provide an alibi for
the suspects was
contradictory and unsustainable. On the one had she had accepted it
was highly likely that Ceki had told Williams
that the suspects could
not have been in involved in the ATM robbery as their vehicle was in
a different location during the whole
of the day in question. Despite
this, she still dismissed the suggestion that Ceki was attempting to
create an alibi for the suspects.
She arrived at this conclusion by
reasoning that because Williams could not prove the suspects were
involved in the robbery and
Ceki’s statement about the
whereabouts of the vehicle was not shown to be false, Ceki could not
be accused of providing a
false alibi for the suspects.
[28]
Although it is an inescapable inference that what Ceki told Williams
was clearly intended to demonstrate the suspects
did not commit the
robbery in question and that, by raising this with Williams, she was
trying to assist the suspects, it does
not follow that what she said
necessarily amounted to a false alibi. As potentially exculpatory
information it was something that
was relevant to the investigation
and it was not inherently improper of her to mention it even if it
was information which favoured
the suspects. Consequently, it was not
untenable of the arbitrator to find she was not guilty of tendering a
manufactured alibi
in the absence of evidence that it was probably a
false one.
[29]
Thirdly, SAPS contends that in the light of Ceki’s persistent
efforts to retrieve a cell phone from her boyfriend
on the day of his
arrest, the only reasonable inference that could be drawn is that her
efforts to obtain the cell phone must have
been because she was
attempting to prevent it being used as a source of evidence. Her
position as the secretary of the commanding
officer where she might
gain access to sensitive information was also a factor which the
arbitrator failed to consider in evaluating
Ceki’s fitness to
retain her job. Taking these considerations into account, SAPS argues
that the arbitrator’s decision
that it would not be intolerable
to retain Ceki is one that cannot be reasonably justified.
[30]
The evidence showed that Ceki used her position as a staff member at
the station, to gain access to the suspects and
to try to prevent her
boyfriend’s cell phone from being retained by the
investigators. Had she succeeded, the consequence
would have been
inimical to the investigation and obviously amounted to an attempt to
interfere with it. Ceki showed no remorse
for her conduct. The
officer commanding had to take steps to prevent Ceki having access to
sensitive information, so even though
she was not suspended pending
the disciplinary action, it was necessary to take additional measures
to address the lack of trust
which had developed. Where it was deemed
necessary to take special measures to prevent Ceki having access to
sensitive information,
it is clear the trust the officer commanding
had in her secretary was broken. How the trust between employer and
employee could
be said to have been maintained in those circumstances
is difficult to fathom. The arbitrator’s finding that the trust
relationship
remained intact, if ‘tarnished’ had no
foundation in the evidence.
[31]
On the basis of the discussion above, the arbitrator’s
conclusion that it was unfair to dismiss Ceki was one no
reasonable
arbitrator could have arrived at on the evidence before her.
Order
1. The Applicant’s
late filing of the review application is condoned.
2. The Applicant
must pay the Third Respondent’s costs of opposing the
condonation application.
3. The finding of
the Second Respondent in arbitration award no PSSS674-19/20, issued
on 16 May 2022, that the Third Respondent’s
dismissal by the
Applicant was substantively unfair as well as the consequential
relief awarded in paragraphs 49 and 50 of the
award are reviewed and
set aside.
4. The finding of
the Second Respondent that the Third Respondent’s dismissal was
substantively unfair is replaced with
a finding that the Third
Respondent’s dismissal was substantively fair.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances
For
the Applicant
Q
Mavongo instructed by State Attorney Cape Town
For
the Third Respondent
C
May from BDP Attorneys
[1]
Constable
L Gericke
[2]
Constable
Gordon