Bradley v South African Police Department and Others (JR 1971/18) [2020] ZALCJHB 231 (14 October 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 1971/18

In the matter between:

MORGAN MYNHARDT BRADLEY

Applicant

and

SOUTH AFRICAN POLICE SERVICE

First Respondent

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL

Second Respondent

MASEGE KEHEDITSE N.O.

Third Respondent

Enrolled: 25 August 2020 (Decided on the papers)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 14 October 2020 at 12h00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant was in the employ of the first respondent (SAPS) as a Constable when he was charged and dismissed on 11 July 2016 for alleged misconduct. An internal appeal was dismissed on 10 November 2016 and the applicant subsequently approached the second respondent (SSSBC) claiming that his dismissal was procedurally and substantively unfair. The third respondent (Arbitrator) in an award issued on 12 August 2018 dismissed the applicant’s claim. It is this award that the applicant seeks that it be reviewed and set aside. The SAPS opposed the review application.

Background:

[2] The incident that led to the dismissal of the applicant took place on 3 August 2015 in the Nigel precinct. He was charged with intentionally and unlawfully breaking into private premises belonging to LM Café, with the intention to commit theft. The second charge was that he committed theft by removing cash and cigarettes belonging to LM Café. The third related to conspiracy with a fellow employee, Constable PT Maesa to commit the crime in question. The applicant was not found guilty of the latter charge. Maesa was also dismissed for the same offences.

[3] The evidence before the Arbitrator was as follows;

3.1 The applicant had together with Maesa, reported for night shift at 18h00 on 2 August 2015, which was to end at 06h00 on 3 August 2015. The Relief Commander on duty, Warrant Officer Barend Fourie, had posted the applicant and Maesa as Van Crew in sectors 1 and 3 of the Nigel area, with police a vehicle (Registration number; BSK NG 32) allocated to them.

3.2 A housebreaking incident was reported to Fourie during the shift at about 03h00 and he had requested the applicant and Maesa to investigate the complaint. Fourie’s evidence before the Commissioner did not add much other than to point out that he did not receive any incident report during the shift related to that complaint.

3.3 According to one of investigating officers, Mr GP Bronkhorst, a formal complaint was lodged by a female on 3 August 2015, who had reported that her business, LM Café was broken into. A criminal case docket was then handed over to him. The complainant had then on her own obtained video footage from the neighbouring business premises with a view of ascertaining who the perpetrators were, and had handed it over to Bronkhorst.

3.4 The video footage revealed that police officers in police uniforms were involved in the housebreaking, and had used a police vehicle to load goods stolen from LM Café. From the video material obtained, the identity of the police officers who were involved could not be established, nor could the registration details of the police vehicle involved.

3.5 Warrant Officer Wilkinson was then requested to draw a AVL report (An automatic vehicle location system that utilises global tracking of police vehicles), to establish which police vehicles were in the area at the time of the incident. From the AVL report, it was established that four police vehicles were in the area at the time that the crime took place, inclusive of the vehicle allocated to the applicant and Maesa. The latter’s vehicle was detected to have been about 54m from the scene of the crime not long after its commission.

3.6 The applicant and Maesa were then advised of the investigations by Bronkhorst, and warning statements were obtained from them in which they explained their movements at the time of the crime. These statements were then filed in the docket which was referred to the Prosecutor in the Springs Court. The Prosecutor declined to prosecute on account of lack of sufficient evidence.

3.7 In his warning statement, the applicant had stated that he and Maesa had received a complaint at about 03h00 and that they had gone to different area to find the location of where the complaint came from. As they were attempting to find the exact location, a certain Captain Coetzee from the East Rand Flying Squad, who was not in uniform, had stopped them and told them that he needed to borrow (swop vehicles) with them in order to effect an arrest and seize items in the area.

3.8 The applicant had then made an entry into his pocket book and the said Captain Coetzee had then signed his pocket book after they had swopped vehicles. They had thereafter returned to the police station and waited for Captain Coetzee to return the vehicle. When they arrived at the station they had found the officer on duty, Sergeant Botile sleeping in the charge office.

3.9 Investigations by Bronkhorst had however revealed that no person by the name of Captain Coetzee existed in the East Rand Flying Squad as alleged by the applicant. Another Captain Coetzee was however located from the West Rand area, but it was discovered that he could not have been in the area where the incident took place, as he was off duty on the day of the incident, and had in any event, never visited the Nigel district. Furthermore, it was discovered from the AVL and area report that no vehicles from the Flying Squad were in Nigel in the night in question. Bronkhorst had found it strange for members of SAPS to borrow or swop vehicles from each other without following the necessary procedures.

3.10 Bronkhorst had further stated that he had obtained a statement from Botile who had denied that he was sleeping on duty at any time. Botile had further denied having seen the applicant or Maesa at the charge office at any time before the end of the shift, or having received any incident report in the night in question. Botile had also stated that the applicant had at some point approached him and attempt to make him admit that he had indeed returned to the charge office when he had not. Botile also testified before the Arbitrator in this regard and further added that he only saw the applicant at about 05h45 when they left the station.

3.11 A further statement from Constable Radebe who was also on duty at the charge office was obtained, in which he had confirmed that at no stage did the applicant and Maesa come back to the office or file any incident report during the shift. Radebe also stated that the applicant had approached him at some stage to attempt to make him recall that he and Maesa had come to the station when that was not the case. Radebe also testified before the Arbitrator and confirmed this version.

3.12 Bronkhorst had further seized the applicant’s pocket book and discovered that the entries made therein did not make sense in regards to the events of his shift, as the dates in the entries were altered, and the signature of the alleged Captain Coetzee was questionable. Furthermore, the pocketbook was handed to the applicant in January 2013.

3.13 According to Bronkhorst the warning statement by Maesa, was also inconsistent with that of the applicant, more particularly since he had stated that upon giving the vehicle to the alleged Captain Coetzee, they had walked back to the charge office, whilst the applicant had contended that they were dropped off at the police station by the said Captain Coetzee.

[4] The applicant’s testimony before the Arbitrator was that;

4.1 Whilst he and Maesa were patrolling in Section 1 and 3 of the precinct, they had received a call from Fourie at about 01h00 to inform them that there was a housebreaking incident in progress in sector 3 which is an industrial area.

4.2 Whilst attempting to find the location where the incident took place, they were in communication with Fourie, who had also informed them that he was on the phone with the complainant at the time. Whilst still attempting to find the exact location, they were stopped by a white male in civilian clothes in an unmarked vehicle, and who had introduced and identified himself as Captain Coetzee by producing his appointment certificate. Following Coetzee’s vehicle at the time that he stopped them was another marked police vehicle.

4.3 Coetzee had informed them that he needed their vehicle to effect an arrest on a police official and seize certain goods in the area. He asked them if they could swop vehicles and that he would sign the applicant’s pocket book and complete the paperwork upon his return to the police station. The applicant and Maesa then agreed that they will hand over the vehicle. The applicant also told Coetzee that he will make an entry in his pocket book for Coetzee to sign when he returned the vehicle.

4.4 After an agreement with Coetzee, another member of the Police who was in uniform and who was with Coetzee, got into their allocated vehicle, and he (applicant) drove back to the police station, where he handed over the vehicle to Coetzee and his colleague. They then entered the charge office where he (applicant) made an entry into his pocket book and waited for Coetzee.

4.5 Some 15 minutes later Coetzee came back , hooted from the outside, and the applicant went to him to accept the vehicle. He and Maesa then went out again to patrol.

4.6 Under cross-examination, the applicant testified that the duty to complete the necessary documents in regards to the handing over of a state vehicle to another officer was on the designated driver, Maesa, and that he did not check whether the necessary forms (SAPS 132B) was completed or not. He however contended that it was not unusual for police officers to exchange vehicles without following procedures.

4.7 When questioned about the entries he had made in his pocket book, the applicant conceded that he was negligent in making those entries as the dates mentioned therein were not correct

The Arbitrator’s award:

[5] The Arbitrator did not find any grounds to conclude that the dismissal was procedurally unfair. In concluding that the dismissal was substantively fair, the Arbitrator had regard to the common cause facts, which included the area where the applicant and Maesa were posted; the time that the incident took place; and the fact that they were in a police vehicle which was located through the AVL to have been close to the scene of the crime. The Arbitrator further found that the evidence in regards to the AVL report was not disputed and there was no reason to reject it.

[6] The Arbitrator found that based on the circumstantial evidence, an inference in favour of a finding that the applicant was involved in the crime had to be drawn based on the following considerations;

6.1 The incident that took place was not reported during the course of the shift, and no entry was made in the OB. This was despite the fact that the AVL report placed the applicant and Maesa at or near the scene of the crime, and none of them had proffered any explanation as to why the incident was not reported.

6.2 The applicant’s version related to a Captain Fourie and the swopping of vehicles was a fabrication, in order to create doubt in relation to his involvement in the crime in question. That version was proffered as a reason for his and Maesa’s failure to attend to the crime they should have been aware of since they were in the area. Furthermore, evidence led on behalf of the SAPS had revealed that a Captain Coetzee did not exist in the Nigel area, and also, the applicant did not deem it appropriate to call

this individual to corroborate his version.

6.3 The applicant’s related version in regards to the swopping of vehicles also ought to be rejected in that there were procedures put in place, which required authorisation from the Station Commander, and which procedures were not followed.

6.4 The applicant’s version that he had returned to the police station after the alleged swop of vehicles with Captain Coetzee was also to be rejected as his colleagues who were on duty with him at the time had denied that he had returned at any time until just before 06h00.

6.5 The fact that the applicant had also attempted to make his colleagues recall that he had returned during the course of the night shift was also indicative of his deceitfulness, and there was no reason to believe that his colleagues would lie about whether he came back or not at the time that he alleged that he did.

The grounds of review and the legal framework:

[7] It was submitted on behalf of the applicant that the award was reviewable on the grounds that the Arbitrator committed various gross irregularities which rendered her decision unreasonable; that the Arbitrator failed to apply her mind to the facts and the evidence, and consequently drew the wrong inferences; and that the Arbitrator committed errors of law, and conducted proceedings in a procedurally unfair manner.

[8] The SAPS on the other hand contended that the Arbitrator’s award was reasonable based on the material placed before her, and that there was no substance to the allegations that the arbitration proceedings were conducted in an unfair manner.

[9] The test on review is fairly settled. It is not necessary to rehash the test other than to re-emphasise that the threshold is fairly high in that the applicant for a successful review must show that the outcome reached by the arbitrator was not one which could reasonably be reached on the evidence and other material before her[1].

[10] Awards are not lightly interfered with, and the emphasis is in the result rather than a meticulous analysis of the reasons[2]. Thus, to the extent that in this case it was submitted on behalf of the applicant that the Arbitrator had committed gross irregularities,

it must be demonstrated that the Arbitrator misconceived the nature of the inquiry or arrived at an unreasonable result[3]. In the end, the Court must ascertain whether the arbitrator considered the principal issues before her; evaluated the facts presented at the hearing, and came to a conclusion that is reasonable[4].

[11] To the extent that it was not in dispute that the Arbitrator in this case was confronted with circumstantial evidence, the applicable

approach is equally fairly settled. When dealing with circumstantial evidence as in this case, the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. However, if the facts permit more than one inference, the most plausible inference must be selected, and the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn [5].

[12] Furthermore, a distinction must be made between inferences, assumptions or speculations. Whilst inferences are drawn from existing facts, speculations or assumptions have no factual foundation to them[6]. Equally important is that when dealing with circumstantial evidence, the court is not required to consider every fragment of evidence individually, as it is the cumulative impression, (i.e., all the relevant evidence) that has to be considered[7].

Evaluation:

[13] Applying the above principles to the facts of this case, I can state without hesitation that I am satisfied that the Arbitrator’s approach to the evaluation of the circumstantial evidence was correct. She had, contrary to the submissions made on behalf of the applicant, considered the totality of the evidence and, in that process, weighed the evidence of the applicant against that of the SAPS’ witnesses, and arrived at a finding that falls within the bounds of reasonableness.

[14] The Arbitrator in my view, rightfully rejected the applicant’s evidence based on its improbabilities. In a nutshell, the applicant’s

version did not make any sense, and the Arbitrator was correct in finding that it was a fabrication. My conclusions in this regard are based on the applicant’s own version as can be gleaned from the transcribed record[8]. Even if the cross-examination of the applicant was unhelpful, his version in examination in chief nonetheless revealed the following;

14.1 Whilst on patrol with Maesa, they had received a call from Fourie advising them of a housebreaking incident in progress. Further on the applicant’s own version, at some point when they could not find the location, Fourie, who was in contact with them, was also in a telephonic contact with the complainant and was informed that a ‘lady was screaming on the phone in panic’.

14.2 One can deduct from the applicant’s own version of the events at the time that he was informed that a housebreaking was in progress and a member of the public was in distress. In all of these, and even if his version that they could not find the location is believed, once the alleged Captain Coetzee arrived, he and Maesa had without question, abandoned the search for the location of the scene of the crime, wilfully swopped their vehicle with the said Coetzee, and were dropped off at the police station.

14.3 What is even more extraordinary is that despite having been in constant communication with Fourie, no attempt was made to inform the latter of the alleged Coetzee and the swopping of vehicles, nor is there any evidence that they had informed the said Coetzee that they themselves were in the process of locating a crime scene. Nothing further is said about a member of public who was in distress, or what had happened thereafter to the crime scene. On his own version, there is no indication that any attempts were made to find the location even after the alleged Coetzee had returned their vehicle.

14.4 No entries were made in the applicant’s pocket book or OB at the station in regards to the events of the shift. Bronkhorst’s evidence that there were inconsistencies and problems in the entries made by the applicant in his pocket book were conceded, and for the applicant to simply downplay such an important function to mere laziness or negligence is clearly unsatisfactory. In this regard, the Arbitrator’s conclusions that no entries were made in the pocket book for nefarious reasons cannot be faulted.

14.5 It is indeed odd that the applicant and Maesa would simply hand over a state vehicle in their care to the said Coetzee, be dropped off at entrance of the charge office without any questions, and simply wait for Coetzee to come back. Even then, when Coetzee came back, he had simply dropped off the vehicle, and allegedly signed in the applicant’s pocket book about the vehicle swop, without bothering to enter the premises to explain anything to anyone about the alleged arrest of any individual or seizure of goods.

14.6 What makes the applicant’s version even more ludicrous is that he had testified that when Coetzee stopped them and asked for a vehicle swop, there was another marked police vehicle following him (Coetzee) in his private vehicle. It is not explained as to the reason Coetzee would have wanted two marked police vehicles for the purposes of effecting an arrest on a single individual and seize assets.

14.7 Equally undisputed is that the said Captain Coetzee upon Bronkhorst’s investigations did not exist, and it is apparent that this individual was made up as part of the applicant’s concocted version.

14.8 Other than the clearly ludicrous nature of the applicant’s version, the SAPS had relied on the only evidence it had in placing the applicant and Maesa at the scene of the crime. The AVL and area reports could not be challenged and the Arbitrator had no reason to reject them, especially in the light of the inherent improbabilities of the applicant’s version in regards to his movements at the time of the commission of the crime.

14.9 Two of the applicant’s colleagues who were witnesses in the arbitration proceedings had denied that the applicant had at any time just prior to 06h00, returned to the premises, and the Arbitrator had no reason to doubt or reject their versions, especially since both of them had confirmed that the applicant had attempted to persuade them to ‘recall’ that he and Maesa had come back to the charge office at any time before 06h00 when that was not the case.

[15] In the light of the above conclusions, it is not even necessary to deal with each and every ground of review raised on behalf of the applicant, which in any event points to nit-picking, and what the applicant essentially seeks is akin to an appeal.

[16] In Goldfields,[9] it was held that the review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with one or some of the factors amounts to

process-related irregularity sufficient to set aside the award. This piecemeal approach of dealing with the arbitrator’s award is improper, as the review court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make[10]. The applicant’s grounds of review are clearly indicative of a piecemeal approach and nit-picking.

[17] On the whole, I am satisfied that the Arbitrator considered the principal issues before her; evaluated the facts presented at the hearing, and came to a conclusion that is reasonable. I am further satisfied that when dealing with circumstantial evidence in this case, the inferences drawn by the Arbitrator were consistent with all the proved facts. The Arbitrator’s findings and legal conclusions are those that a reasonable arbitrator could have arrived at on the material before her, and thus satisfied the Sidumo test.

[18] I have further had regard to the requirements of law and fairness in relation to an award of costs. Even though I am of the view that this application is clearly ill-considered and was doomed to fail from the start, I do not deem it necessary to make any award of costs.

[19] Accordingly, the following order is made;

Order:

1. The application to review and set aside the third respondent’s arbitration award issued on 12 August 2018 is dismissed.

2. There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

REPRESENTATION:

For the Applicant: Africa and Associates. Heads of argument prepared by Adv. C. Louis

For the First Respondent: State Attorney, JHB. Heads of argument prepared by Adv. N Thokoane

[1]Sidumo & Another v Rustenburg Platinum Mines 2008 (2) SA 24 (CC) at paras [105] – [110]

[2] Fidelity Cash Management Services v CCMA & Others (2008) 29 ILJ 964 (LAC) at para [100]

[3] Herholdt v Nedbank Limited 2013 (6) SA 224 (SCA) at para [25]

[4] Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA [2014] 1 BLLR 20 (LAC)

[5] See De Wet v President Versekeringsmaatskappy 1978 (3) SA 495 (C) at 500E – F; R v Blom 1939 188 AD at 202-203

[6] See AA Onderlinge Assurancie-Associasie BPK v De Beer (1982 (2) SA 603 (A) at 620 E to G

[7] S v Ntsele 1998 (2) SACR 178 (SCA)

[8] Page 99 – 119 of the Transcribed Record

[9] Supra

[10] At paras 18 - 19