SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: J1081/23
In the matter between:
MINISTER OF POLICE First Applicant
NATIONAL COMMISSIONER:
SOUTH AFRICAN POLICE SERVICE Second Applicant
PROVINCIAL COMMISSIONER:
SOUTH AFRICAN POLICE SERVICE Third Applicant
SOUTH AFRICAN POLICE SERVICE Fourth Applicant
and
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL (SSSBC) First Respondent
THABE PHALANE N.O. Second Respondent
SAM HENDRI PIETERSEN Third Respondent
KAREL CHRISTOPHER MASHEGO Fourth Respondent
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Heard: 26 February 2026
Delivered: 5 March 2026
Labour law - Review - Condonation — Significant delay with inadequate explanation -
Interests of justice remain decisive – prospects of success, prejudice and importance of
matter - Condonation granted – Applicant ordered to pay costs for its inadequate
explanation for delay.
Police officials – Third Respondent - Misconduct - Failure to investigate suspected stock
theft – No misconduct established – Dismissal substantively unfair – Arbitration Award -
Commissioner’s decision reasonable.
Police officials – Fourth Respondent - Misconduct - Failure to investigate suspected
stock theft - Visible brand marks on impounded cattle ignored – Reliance on unverified
telephone information – Ignorance of earlier statements - Release of cattle to
unauthorised person without proper verification - Purchase of impounded cow by
investigating officer - Contradictory and improbable evidence - Serious misconduct
established — Dismissal substantively fair
Arbitration award – Fourth Respondent - Reviewability - Commissioner misconstrued
material evidence and failed to analyse inconsistencies – Findings – Commissioner’s
decision set aside and substituted - Unfair dismissal claim dismissed.
Arbitration award - Section 158(1)(c) application - No basis to interfere with award
regarding third respondent - Award made order of court.
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date of hand-down is 5 March 2026.
JUDGMENT
MAKHURA, J
3
Introduction
[1] This matter concerns an opposed review application brought in terms of section
145 of the Labour Relations Act 1 (LRA) against the arbitration award issued by
the second respondent ( commissioner) dated 8 November 2022. This review
application is accompanied by an application for condonation for its late delivery.
[2] The third respondent, Sam Handri Pietersen (Pietersen), and the fourth
respondent, Karel Christpher Mashego (Masheg o), oppose both the review and
condonation applications. Pietersen filed his answering affidavit outside the
prescribed time period and accordingly seeks condonation for its late delivery. He
has also launched an application in terms of section 158(1)(c) of the LRA to have
the arbitration award made an order of court.
Condonation applications
[3] The applicant states that it received the award on 9 December 2022. The review
application was therefore due on 20 January 2023. The explanation provided for
the delay up to 3 April 2023 is, in my view , overall reasonable. However, the
explanation for the peri od between 3 April and 28 June 2023 is inadequate .
During these approximately three months, the deponent waited for authorisation
from the National Commissioner without making any follow-up enquiries. After
authorisation was finally granted on 28 June 2023, the deponent forwarded a
request to the State Attorney to initiate the review application.
[4] The instruction to the State Attorney was sent on 30 June 2023. The State
Attorney then took an additional month and a half before appointing counsel.
There is no explanation why the State Attorney, in this case, Matome Madibogo,
as a qualified attorney, could not draft a review application. Instead, the Court is
merely informed that urgent quotations were sought from counsel and that
counsel was appointed only on 15 August 2023. T he review application was
eventually launched on 29 August 2023.
1 Act 66 of 1995, as amended.
4
[5] Having considered the explanation for the delay as a whole , I am not satisfied
that it provides a full and reasonable account of the delay . Nevertheless, it is trite
that the overarching test in a condonation application is the interest of justice,
which requires consideration of all relevant factors. 2 As the Constitutional Court
(CC) emphasised i n Mphephu-Ramabulana and Another v Mphephu and
Others3:
‘While I am of the view that the extremity of the delay, coupled with the paucity of
the explanation provided, justify the immediate refusal of condonation, I am
mindful that this Court has said that lateness and inadequacy of the explanation
provided are not necessarily dispositive of the question of condonation. This is
because the other factors relevant to condonation may favour its granting and tilt
the interests of justice to the other side of the scale…’
[6] Therefore, whilst I accept that the application is late and that there are
unexplained gaps , th ese deficiencies are decisive . The CC has said that other
factors may tilt the scale of justice to the other side. The employees involved in
this matter are police officials whose daily duties include upholding and enforcing
the law and contributing to the administration of justice, and who have been
alleged to have failed in these critical duties . I have also considered the
prospects of success , as set ou t more fully later when I deal with the review
application, as well as the potential prejudice to the employees may suffer. In my
view, the potential prejudice can be mitigated by an appropriate costs order . In
the circumstances, the interest of justice favours granting condonation.
[7] Having considered all these factors, the applicant’s condonation application must
succeed. However, due to its failure to provide a full account for the entire period,
it must bear the costs of the condonation application.
2 Grootboom v National Prosecuting Authority and another 2014 (2) SA 68 (CC); [2014] 1 BLLR 1 (CC) at
paras 22 – 23; Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA 837 (CC); 2000 (5) BCLR
465 (CC) at para 3; Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008
(2) SA 472 (CC); 2008 (4) BCLR 442 (CC) at para 20.
3 [2021] ZACC 43; 2022 (1) BCLR 202 (CC) at para 38.
5
[8] The same principle applies to the third respondent’s unopposed application for
condonation for the late delivery of his answering affidavit. T he third respondent
has provided a reasonable explanation for the two- months delay , and his
application is therefore granted.
[9] I now turn to the merits of the review application.
Material facts and evidence
The charge sheet
[10] The employees were charged with two identical allegations of misconduct . The
first charge was serious misconduct as provided for in regulation 5(3)(b)(iii) of the
South African Police Service Discipline Regulations, 20164 (SAPS Regulations)
in that between 30 October 2018 and 8 November 2018 , at Murryhill Pound and
Onderstepoort Auction, they:
‘Performed an act, or failed to perform an act with the intention not to comply with
[their] duties and responsibilities, in that [they] confiscated suspected stolen
cattle near Vereeniging, [they] impounded the cattle, but failed or neglected to
trace the rightful owner and that, [they] handed these cattle back to a person who
could not lawfully possess them.’
[11] Regulation 5(3)(b)(iii) provides that an employee will be guilty of misconduct if he
or she performs any act or fails to perform any act with the intention not to
comply with his or her duties or responsibilities.
[12] The second charge was serious misconduct as provided for in r egulation 5(3)(t)
of the SAPS Regulations, 2016, in that on 8 November 2018, they:
‘Conducted [themselves] in an improper, disgraceful and unacceptable manner ,
by attempting to sell a cow at the auction which was the property of Mr SW
Fourie from Christiana.’
4 South African Police Service Discipline Regulations, GG 40389 of 1 November 2016.
6
[13] Regulation 5(3)(t) provides that it makes it an offence for an employee who
conducts himself or herself in an improper, disgraceful and unacceptable
manner.
[14] On 17 July 2018, they were found guilty of both allegations of misconduct .
Pietersen was dismissed with effect from 26 July 2018. Pietersen held the rank of
captain at the time of his dismissal. Karel Christoher Mashego (Mashego) was
dismissed on 18 July 2018. At the time of his dismissal, he held the rank of
sergeant. The applicants challenged the substantive fairness of their dismissal.
The evidence
[15] Pietersen was employed with effect from 12 January 1994. At the time of his
dismissal, he had over 24 years of service with the SAPS and held the rank of
Captain. Mashego joined the SAPS on 3 June 2002, h ad 16 years ’ service, and
held the rank of Sergeant at the time of his dismissal.
[16] On 30 October 2017, the two employees reported for night shift duty. They were
part of a special operation at the Vaal area , led by Colonel Greyling, joined by
Captain van der Walt, Warrant Officer Pretorius and Constable Mahlangu. In the
early hours of 31 October 2017, Greyling and van der Walt left the operation ,
leaving Pietersen, as the most senior officer of the remaining employees, in
charge of the operation.
[17] At approximately 4h30, Pietersen and the remaining officers stopped a red
Mitsubishi Pajero towing a green trailer containing nine cattle, including three
calves. This vehicle was driven by Bafana Watt (Watt) . Watt had three
passengers. Pietersen’s evidence was that upon enquiring from Watt about the
ownership of the cattle, Watt said that they belonged to him. However, Watt did
not have a certificate of ownership and for the transportation of the livestock. The
evidence was that Watt and the passenger s searched for the certificate in the
vehicle, but could not find it. Watt then directed them to a nearby farm, ow ned by
Reuben Mhlongo (Mhlongo).
7
[18] When they arrived at Mhlongo’s farm, they offloaded the cattle. One cow had
been lying down injured in the trailer . Pietersen was in constant contact with
Greyling, and together they decided to impound the cattle on suspicion that they
were stolen. Watt and his companions were not arrested at that stage pending
further investigation. Pretorius was instructed to photograph the cattle, which he
did.
[19] The cattle were taken to the Murrayhill Pound, where Mashego booked them in,
except for the injured cow, which later died. Salani, a pound employee, testified
that Mashego failed to record the brand marks even though they were visible.
Both Salani and Pretorius confirmed that the cattle had clear brand marks, which
Pretorius could point out on the photographs. Mashego’s evidence on the brand
marks was inconsistent. He variously claimed that th e cattle had “no brand
marks”, “no visible brand marks” and that the brand marks were not “ clearly
visible”, that there were “vague brand marks” and that they were not visible “with
a naked eye”. He later argued that the brand marks on the cattle, specifically on
the cow he allegedly purchased on behalf of a relative , which was a subject of
the attempted auction, were added after the cow was confiscated on 8 November
2017.
[20] The operation continued until the afternoon of 31 October 2017. Pietersen
informed Mashego, Mahlangu and Pretorius that Greyling had assigned
Mashego to open an enquiry docket and conduct the investigation. He also told
them they could leave and take the following day, 1 November 2017, off.
[21] Although Pietersen’s evidence was that Watt informed him that the cattle
impounded on 31 October 2017 belonged to him, Mashego recorded a different
version in his investigation diary on 31 October 2017. He recorded:
‘Six cattle and three calfs ( sic) were found inside the trailer being transported to
plot 54 Rietkuil by Bafana Watt driving a red Mitsubishi Pajero reg JZY 394 GP.
plot 54 Rietkuil by Bafana Watt driving a red Mitsubishi Pajero reg JZY 394 GP.
Bafana was not having a section 8 document and alleged that the cattle come
from Thabiso of Potchefstroom to Mr Reuben Mhlongo who was found at his plot.
8
The cattle were having many brand marks which were later tested. One cow was
trampled by other cattle and sustained injuries and died. The cattle were
pounded at Murrayhill Pound for further investigation.’ (Emphasis added)
[22] In another uncommissioned statement, Mashego wrote that:
‘On Tuesday 2017/10/31 at about + -5:00 I was officially on duty at Sebokeng
when I stopped a red Mitsubishi Pajero reg J [… ] towing a green trailer reg V […]
which was loaded with cows and calfs (sic). There were four occupants inside the
Mitsubishi. The driver Bafana Watt said that he is transporting the cattle from
Potchefstroom and he doesn’t know the place where they loaded. He said the
cattle are going to Reuben (Mhlongo) who stays at plot 54 Rietkuil.
Reuben Mhlongo was called and said the cattle belongs (sic) to him and he
bought them from Thabiso. Bafana was escorted to Reuben’s plot and suspected
that the cattle might be stolen because he failed to produce the purchase papers.
The cattle were taken to Murrayhill Pound for safe keeping and investigate
further.’ (Emphasis added)
[23] Mashego’s statements conflict with Pietersen’s version during arbitration.
Pietersen claimed that Watt said the cattle belonged to him, while Mashego
wrote that Watt said the cattle belonged to Mhlongo. This is also inconsistent with
Mashego’s own testimony that he had not even spoken to Watt at the roadside.
Mashego’s statements also contradict themselves, suggesting variously that the
cattle were bought from Thabiso, belonged to Mhlongo, and were being
transported from Potchefstroom to Mhlongo’s farm.
[24] The cattle, per the evidence before the commissioner, had the following brand
marks, SF Smiley, VHW and PSF . Mashego’s own written statement
acknowledged that the cattle had “many brand marks”, although during his cross-
examination, he tried to read his statement as the cattle “not having many brand
marks”. Pietersen and Mashego entered a formal admission at the arbitration that
marks”. Pietersen and Mashego entered a formal admission at the arbitration that
the brand mark “SF Smiley ” or “Smiley SF ” was registered to VTV Boerder y
EDMSA Beperk of Christiana, owned by Schalk Willem Fourie (Fourie).
9
[25] Pietersen returned to duty on 2 November 2017. His evidence was that after the
parade, which starts at 7h30 and takes about 15 minutes, he overheard Mashego
telling Greyling that he received the section 6 and 8 certificates from Watt and
had “followed up on all the relevant information, and everything” . According to
Pietersen, Greyling replied that “if [he] was sure and if [he is] satisfied with the
investigation, [he] can hand over the cattle to Mr Watt” . Mashego did not
challenge Pietersen’s account of his conversation with Greyling.
[26] The cattle were released by Mashego and handed over to Watt on 2 November
2017. However, Watt left one cow. Salani testified that Watt said that he would
return later to collect the remaining cow. However, around 12h00 on the same
day, Mashego phoned Salani and informed him that he would send someone to
collect the cow later that day. No one arrived to fetch the cow on 2 November
2017.
[27] In his statement dated 9 November 2017, Mashego described the events of 1
and 2 November 2017 as follows:
‘On Wednesday, 2017/11/01 at about + - 10h00 I was busy on my investigations
when I received a call from Mr Ben Van Zyl of Hartswater informing me that he
had sold the cattle to Mr Bafana Watt of Evaton. I asked for the document section
6/8 which he send (sic) to me. He gave me the description of all the cattle and I
was satisfied with the explanation as it is the same information which I received
from Mr B Watt when he was found with the cattle.
The article 6/8 was not given when the cattle were loaded at Hartswater and it
was forwarded to me.
On Thursday 2017/11/02 at about + -10h00 the cattle were handed over to the
lawful owner Mr B Watt ID 930209 95528 087 of Evaton. In the morning of
Thursday 2017/11/02 my commander Colonel Greyling was notified and he gave
a go ahead… cattle … be handed over to the lawful owner which I did. He also
saw the section 8 document.’ (Emphasis added)
10
[28] Despite Pietersen not being challenged when he testified about the conversation
he overheard between Mashego and Greyling on the morning of 2 November
2017, Mashego later gave a different version. Although his written statement said
he “notified” Greyling and received approval, in his oral testimony , Ma shego
claimed, for the first time in his evidence-in-chief, that Greyling actually instructed
him to release the cattle to prevent a potential civil lawsuit.
[29] Further, despite his statement saying that B en van Zyl (van Zyl), the alleged
seller of the cattle to Watt, called him and forwarded the certificate to him,
Mashego testified that he, in fact, called van Zyl and that he received van Zyl’s
contact details from Watt. He then allegedly called van Zyl and asked him
questions to satisfy himself that indeed van Zyl was the lawful owner and seller of
the cattle. After the telephone conversation, Mashego was satisfied that van Zyl
was the lawful owner and that Watt had purchased the cattle from him.
[30] The SAPS uses an Animal Identification System to verify livestock brand marks
and trace ownership, including checking for any links to stock -theft cases. When
Mashego was questioned about what investigation he actually conducted after
opening the enquiry docket, he said that he took Watt’s driver’s licence details
and phoned van Zyl, who allegedly confirmed selling the cattle to Watt. Mashego
could not have profiled Watt because the ID number written on his statement was
incorrect. He further claimed to hav e searched the SAPS Crime Administration
System (CAS) even though there was no CAS number for the case. He later said
that he was just “randomly” searching because there were no visible brand marks
and that he was merely “assuming” what the brand mark might be.
[31] Regarding the cow left behind, Salani testified that Watt told him he planned to
return later to fetch it. Mashego’s version was inconsistent . F irst, he said that
return later to fetch it. Mashego’s version was inconsistent . F irst, he said that
Watt could not load the cow because it did not fit in the trailer . He said that after
Watt was handed over the cattle:
11
‘the only one which was left was not, did not fit in the trailer and when [he] asked
him why he said no, talk to Elson [Salani] that he must find me a buyer because
he saw that that place is an auction so he wanted to sell one cow.’
[32] Later, Mashego explained that:
‘… initially he asked that guy, Elson then I just heard the conversation when he
asked that guy then I, after I handed him the cattle then I heard and then he
called me and then he said he left one cow, the one cow that he left he wants a
buyer, can I, is there anyone whom I know and I asked him did Elson assist you.
He said no, this guy did not assist me, can you please assist me.
Then I asked him why, he said no, my costs were… [indistinct] and then you took
my trailer, he was complaining a lot, you took my trailer and then going to
Hartswater to collect that document and then come back and give it to you, it was
costly, it cost me so much.
Then he asked if I can at least help him and then from the perspective of, you
know a person and ubuntu I said okay, let me call around and then somebody
can come and buy that cow.’
[33] Mashego’s explanation of how he learned about Watt wanting to sell the cow is
contradictory. At one point , he claimed Watt asked Salani to look for a buyer; at
another, he said Watt phoned him personally to request help in finding one. He
claimed the cow was left because it did not fit in the trailer, yet later said Watt
wanted to cover the costs incurred in travelling to Hartswater. His explanation is
questionable because Watt did not know where Hartswater was when he was
questioned during cross-examination. Mashego phoned Salani around midday on
2 November to inform him that someone would collect the cow, indicating the
sale had already been concluded, even though Mashego insisted the transaction
occurred only after he had gone off duty. The exact timing and circumstances of
the cash payment and invoice remain unexplained.
the cash payment and invoice remain unexplained.
[34] Mashego found a buyer for the cow , a distant relative who needed livestock for a
traditional ceremony on 11 November 2017. Mashego claimed that he paid Watt
12
R6500.00 in cash on 2 November 2017 for this cow. When asked whether he
considered this transaction improper, he denied any wrongdoing, saying he was
off duty when the purchase took place and therefore did not view it as
inappropriate.
[35] When Watt was arrested in December 2017, he made a statement saying that
when Mashego released the cattle, he kept one cow and that he did not know
“for what”. At arbitration, Watt changed his version and attempted to support
Mashego’s account, claiming that his December 2017 statement may have been
inaccurate because he gave it in Sesotho and something may have been lost in
translation.
[36] From the evidence presented, it appears that Mashego, who released the cattle
to Watt around 10h00, had already ended his shift by the time he completed the
transaction with Watt. Watt collected the cattle at around 10h 00 and drove back
to Evaton, having left one cow behind supposedly for sale. By approximately
12h00, Mashego had already contacted Salani to say someone would fetch the
cow, showing that the arrangement to sell it had already been finalised. Yet
Mashego insisted that the sale only occurred when he was off duty and/or going
home. The precise timing of the cash payment and the issuing of the invoice
remains unclear, considering the tight timeframe between Watt’s departure and
Mashego’s midday call.
[37] Pietersen testified that he saw Mashego on 3 November 2017. On this day,
Mashego informed him that he had booked out the cattle to Watt and that he
bought one cow from him, on behalf of one of his family member s who needed it
for a traditional ceremony. Mashego also showed Pietersen the receipt of
R6500.00 for the purchase and sked him if he knew anyone who could assist
with transportation of the cow. Pietersen said that his daughter was expecting
two cattle to arrive that day, and arrangements had already been made for
Lourens to collect those cattle for delivery to an abattoir. Mashego asked whether
Lourens to collect those cattle for delivery to an abattoir. Mashego asked whether
Lourens could also collect his cow, and they agreed on a transport fee of R200.
13
Although Mashego did not challenge Pietersen’s testimony, he later claimed that
he knew nothing about the transport arrangements until Monday, 6 November
2017, only to concede during cross -examination by Pietersen’s representative
that he had indeed participated in making the arrangements.
[38] According to Salani, Mashego phoned him again on 3 November 2017, informing
him that someone was coming to collect the remaining cow. Around 9h 00 that
morning, Lourens arrived at the pound and told Salani he had been sent by
Pietersen. As a result, Salani released the cow to Lourens under Pietersen’s
name. Lourens then transported both Pietersen’s daughter’s cow and the cow
allegedly bought by Mashego to his farm after being unable to deliver Pietersen’s
daughter’s cow to the abattoir, which was closed.
[39] Lourens later informed Pietersen that his daughter’s cow was pregnant. A
decision was taken that the pregnant cow must be sold at the auction on 8
November 2017. Coincidentally, issues arose regarding the cow Mashego
claimed to have bought for the family member . The family member for whom
Mashego supposedly purchased the cow discovered it was a heifer, not a bull,
and therefore unsuitable for the ceremony. The family member instructed
Mashego to sell it at the upcoming auction and find a bull instead. During cross-
examination, Mashego also admitted that the cow he purchased was pregnant,
just like Pietersen’s daughter’s cow. As a result, Lourens was asked to transport
both cows to the 8 November 2017 auction.
[40] On 7 November 2017, Fourie, the lawful owner of the cattle with the brand marks
SF Smiley, along with a private investigator , de Jager, met with Mashego. They
showed Mashego a video footage of the red Pajero with a green trailer. Masehgo
was informed that the vehicle was involved in the theft of Fourie’s livestock.
Mashego informed them that he had already released the cattle to Watt and
allegedly gave them directions to Mhlongo’s farm . Mashego refused to
allegedly gave them directions to Mhlongo’s farm . Mashego refused to
accompany Fourie and de Jager to Mhlongo’s farm.
14
[41] On 8 November 2017, Lourens transported the cattle to the auction. Pietersen
tried to secure an early auction number but failed, and Mashego also failed to
secure one. Pietersen ultimately instructed Lourens to return the cattle to his
farm. Jan Hendrik Labuschagne (Labuschagne), the applicant’s second witness,
testified that he and a colleague responded to a complaint at around 12h 57 that
day about suspected stolen cattle being sold at the auction. Two cows were
involved: one with the SF Smiley brand (linked to Fourie) and one with the brand
$T2P3 (belonging to Pietersen’s daughter). Labuschagne spoke to Lourens, who
said that Pietersen had asked him to register the cows under his name at the
auction, which he refused. An employee at the auction also refused.
Labuschagne photographed the cows and arranged for the m to be taken to the
Cullinan Pound for safekeeping. The cattle were first taken to Lourens’ farm.
[42] During the cross-examination of Labuschagne, Mashego put forward the
argument that both Labuschagne and Pretorius were conspiring against him. He
claimed that on the day of the auction (8 November 2017), the cow allegedly
purchased by him had no brand mark and that it was taken to Lourens’ farm
specifically to be branded. This was inconsistent with earlier evidence from
multiple witnesses and Mashego’s own written statement , which had confirmed
that the cattle had visible brand marks.
[43] Mashego called Watt as a witness in an attempt to strengthen his defence. Watt
testified that after his arrest in December 2017 for suspected stock theft, the
criminal case against him was provisionally withdrawn. He speculated that the
withdrawal was due to his providing proof that he owned the cattle. Watt also
contradicted Mashego’s earlier statement, which suggested that he told Mashego
on the day of the incident that the cattle belonged to Mhlongo. Watt said that he
never said the cattle were not his; rather, he merely suggested they go to his
never said the cattle were not his; rather, he merely suggested they go to his
uncle Mhlongo’s farm when stopped. He confirmed that the cattle had brand
marks, even if they were not very clear, and he was unsure whether he had ever
been to Hartswater , despite Mashego’s version that Watt had travelled there to
collect documents.
15
The arbitration award
[44] The commissioner found that Pietersen played no role in the investigation and
therefore could not be held responsible for failing to trace the rightful owner of the
cattle. He also did not release the cattle to Watt. Regarding the second charge,
the commissioner held that the applicant failed to prove that Pietersen attempted
to sell a cow that belonged to Fourie.
[45] With respect to Mashego, the commissioner found that Mashego had:
‘established in his investigations that the lawful owner of the cows was Mr Watt
and he lawfully handed the cows back to the rightful owner.
The evidence is uncontested and there is evidence of a witness, Mr Bafana Watt,
who testified that the cows were bought by him from a Mr Van Zyl , and that he
sold a cow, with the assistance of the Applicant, so that he can recoup the loss
he suffered due to the cows being impounded…
There is also uncontested evidence that of the cows that were being sold at the
auction one belonged to the Applicants’ daughter and one belonged to Mr Watt.
The real owners of the cows were therefore known and the Applicant did not
therefore attempt to sell a cow that belonged to a Mr Fourie.
Mr Watt submitted uncontested evidence that he was arrested, presumably after
the Private Investigators of Mr Fourie came to see the Applicant in his offices,
however the case was withdrawn because he produced uncontested evidence
that he bought the cows from Mr Van Zyl.
There was no evidence by a Mr Fourie that he lost a cow/cows and that these
cows were found in the possession of Mr Bafana Watt. The only reasonable
conclusion therefore is that Mr Watt was the lawful owner and that the applicant
had established this fact and when he bought the cow he was in a lawful
transaction.’
16
[46] The commissioner concluded that both Pietersen’s and Mashego’s dismissals
were substantively unfair, and ordered their retrospective reinstatement with full
backpay.
Analysis
[47] Section 205 of the Constitution5 provides that:
‘The objects of the police service are to prevent, combat and investigate crime, to
maintain public order, to protect and secure the inhabitants of the Republic and
their property, and to uphold and enforce the law.’
[48] Therefore, the SAPS’s mandate is crime prevention. Members of the SAPS must
prevent, combat, and investigate crime, maintain public order, protect citizens
and their property, uphold and enforce the law. Effective crime prevention and
public trust require police officials to respond promptly to suspected criminal
activity and to conduct proper investigations. Police officers m ust not neglect or
outsource these constitutional responsibilities.
[49] Section 6 of the Stock Theft Act
6 requires anyone in possession of livestock to be
able to prove ownership, while section 8 prohibits transporting livestock without
the proper documentation issued by the owner. A person found with suspected
stolen stock must provide a satisfactory explanation for such possession, failing
which he shall be guilty of an offence.
7
Pietersen
[50] The applicant argued that the commissioner erred in finding Pietersen’s dismissal
substantively unfair because he supposedly overlooked Labuschagne’s
evidence. That evidence indicated that Lourens transported both cows to the
auction at Pietersen’s instruction, that Pietersen and Mashego paid R400 for the
transport, and that one of the cows bore the SF Smiley brand. It is , however,
5 Constitution of the Republic of South Africa, 1996.
6 Act 57 of 1959.
7 See sections 2 and 3 of the Stock Theft Act.
17
common cause that the cow that bore the mark SF Smiley was allegedly bought
by Mashego, not Pietersen. Pietersen testified that he was informed by Mashego
about this transaction on 3 November 2017.
[51] It is common cause th at Pietersen’s involvement ended when the operation on
31 October 2017 concluded with the decision from Greyling that Mashego must
open the docket and investigate the matter . Pietersen’s subsequent actions
related solely to helping his daughter manage the sale of her cow. While
Pietersen’s deep involvement in his daughter’s livestock business, especially
given his placement and position in the stock-theft unit, may raise concerns, the
court is required to evaluate the review strictly on the basis of the grounds raised,
taking into account that the dismissal of the employee must be determined based
on the reason provided by the employer for the dismissal.
[52] Considering the charges against Pietersen and the evidence presented, there
was no basis to find that he committed serious misconduct or any misconduct at
all. The commissioner’s finding that his dismissal was unfair is therefore
reasonable. There was no evidence of improper conduct to deny him
reinstatement or limit his back-pay.
Mashego
[53] It is common cause that the cattle impounded on 31 October 2017 had visib le
brand marks. The commissioner completely ignores this important fact. Further,
Mashego was assigned as an investigating officer to trace the lawful owner of the
cattle, using the said brand marks and all available resources within the SAPS . It
is safe to say that he conducted no investigation. His statements were
inconsistent, saying in a written statement that van Zyl phoned him and sent him
the section 6 and 8 documents , and at arbitration claiming he had phoned van
Zyl after receiving his contact details from Watt. Whichever version is true,
Mashego accepted a single telephone conversation with a n unknown person as
Mashego accepted a single telephone conversation with a n unknown person as
sufficient proof of ownership and released the cattle without proper verification.
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[54] Mashego’s version was littered with contradictions and improbable coincidences.
His own statements indicated that Watt had initially told him the cattle belonged
to Mhlongo, and even suggested that Mhlongo confirmed this. Later, he accepted
a completely different narrative involving van Zyl from Hartswater. Watt denied
knowing Hartswater, contradicting Mashego’s claim that Watt had travelled there
to obtain the ownership and/or transportation documents from van Zyl, the seller.
Mashego’s explanations for the purchase of the cow, the cost -recovery motive,
and the events between 1 and 2 November 2017 were inconsistent and lacked
credibility.
[55] The evidence showed that Mashego did not properly investigate the matter or
verify key information. He ignored the brand marks, relied solely on untested
statements, and accepted documents without confirmation. His purchase of the
cow left behind by Watt was highly suspicious and poorly explained, and his
refusal to assist Fourie and the private investigator on 7 November 2017 further
demonstrated that he likely knew Watt was not the lawful owner. His conduct
throughout the arbitration showed evasiveness and an outright intention to distort
the facts.
[56] The commissioner did not engage with or analyse any of the evidence
demonstrating that the cattle actually belonged to Fourie, as shown by their
brand marks. Even if ownership by Fourie were not accepted, there was still no
reliable evidence proving that Watt was the lawful owner. Mashego relied on a
document allegedly sent by van Zyl , without verifying its authenticity, van Zyl’s
farm, or his ownership of the cattle. The mere fact that Watt’s criminal case was
provisionally withdrawn did not establish lawf ul ownership. S uch a withdrawal is
not a finding of innocence, nor does it prove that the cattle were legitimately his.
[57] These failures form the basis of the review grounds. The commissioner
misconstrued the evidence, failed to properly assess the facts, misconceived the
misconstrued the evidence, failed to properly assess the facts, misconceived the
nature of the enquiry, and made errors of law. As a result, his findings regarding
Mashego were unreasonable and cannot stand.
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[58] The record of proceedings is before this Court , and there is no need to remit the
Mashego’s dispute. The Court can substitute the award. T he conduct of
Mashego constitutes serious misconduct. His behaviour showed that he either
knew or ought to have known that Watt was not the lawful owner, and that his
purchase of the cow was part of an improper scheme. His actions undermined
his duties, the true owner of the cattle, and the Constitution. The trust relationship
was destroyed, and dismissal was the only appropriate outcome.
The section 158(1)(c) application
[59] Pietersen has applied to make the award an order of the Court. The award has
been validly or properly issued, and the review application against it , insofar as
Pietersen is concerned, has failed. To the extent that the award applies to
Pietersen, there is nothing preventing this Court from making it an order of the
court. Accordingly, Pietersen’s application must succeed.
Conclusion
[60] Both the applicant and the respondents requested costs orders against each
other. Apart from the costs already awarded against the applicant in the
condonation application, I am not persuaded that fairness and law justify granting
any further costs.
[61] In the premises, the following order is made:
Order
1. Condonation is granted f or both the late delivery of the review application
and the late delivery of the third respondent’s answering affidavit.
2. The applicant is ordered to pay the costs related to its application for
condonation.
3. The review application succeeds in part , only in relation to the fourth
respondent.
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4. The arbitration award, insofar as it relates to the fourth respondent and
specifically paragraphs 191 to 194, is reviewed and set aside, and
substituted with the following order:
‘The dismissal of the fourth respondent is substantively fair and his unfair
dismissal claim is dismissed.’
5. Save as aforesaid, the review application is dismissed.
6. The arbitration award, insofar as it relates to the third respondent and
specifically paragraphs 187 to 190, is made an order of the court.
7. There is no order as to costs.
____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicants: Ms N. Kekana
Instructed by: The State Attorney, Johannesburg
For the 3rd Respondent: Mr I. Hlalethoa
Instructed by: Mphela & Associates
For the 4th Respondent: Mr G.K. Ramaru
Instructed by: Netshilaphala Attorneys