Mabuza v SA Local Government Bargaining Council and Others (JR2572/2017) [2021] ZALCJHB 387 (22 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

CASE NO: JR 2572/2017

In the matter between:

MORRIS MABUZA Applicant

and

SA LOCAL GOVERNMENT BARGAINING COUNCIL 1st Respondent

T NTIMBANA N.O. 2nd Respondent

EMAKHAZENI LOCAL MUNICIPALITY 3rd Respondent

Date of hearing: 21 October 2021

Date of judgment: 22 October 2021

JUDGMENT

VAN NIEKERK J

[1] This is an application to review and set aside an arbitration award issued by the second respondent (the arbitrator) on 2 October 2017. In his award, the arbitrator upheld the applicant’s dismissal by the third respondent.

[2] The review application was filed late. The explanation for what amounts to a minimal delay is satisfactory, and condonation is granted on that basis.

[3] The material facts are recorded in the award under review, and do not warrant repetition here. It is sufficient to record that the applicant was employed as a traffic officer and later promoted to an examiner, which required him, amongst other things, to examine candidates for learner’s licences. The applicant was dismissed for misconduct after having been found guilty of processing and issuing licences to persons who did not meet the necessary requirements, and suing a colleague’s PIN code to capture information on the IT system without the requisite authority. Also dismissed was a Ms Skhosana, whose dispute was the subject of the same arbitration. The arbitrator found Skhosana guilty of misconduct, but considered that in her case, the penalty of dismissal was too harsh. That decision forms no part of these proceedings.

[4] At the arbitration hearing, the third respondent called 4 witnesses. The first was a captain in the SAPS (Mashaba) who had conducted an investigation into fraud and corruption of learner’s licences issued to persons who did not write the test. At the third respondent’s licence testing centre, she and Captain Nkwanyana requested all documents for applicants tested on 7 March 2016. In these documents, Captain Nkwanyana found three applications by foreign nationals, who had passed the test. Investigations revealed that these persons did not write the test. Two of the foreign nationals concerned could not be traced from their residential addresses submitted in the course of the application. On investigation, the owner of the property was unaware of the foreign nationals concerned. The only individual traced was Mr Lapisso who confirmed not having completed any application, since he could not read or write English. A Mr Madonsela, the owner of the property at the given address, denied any knowledge of the three foreign nationals who had been issued with licences. Mashaba also testified that when the applicant’s car was searched, a number of application forms were found in the boot, some of them not dated and others not signed. A Mr Maluleke, employed by the road traffic management corporation, testified that the applicant was found to have used the pin code (PIN) of his colleague Skhosana to capture applications for learner licences without consent. He also gave evidence as to the application forms found in the boot of the applicant’s car. Some of the applications found had been signed by the applicant but not the applicants for the learner’s licence themselves, other forms were not dated. Nkwanyana, a detective from the Hawks, testified that he received information from the person working for the road traffic management corporation to the effect that foreign nationals would be issued with fraudulent licences and that the applicant was involved. A team was dispatched to the applicant’s licence testing centre and requested all documents relating to applicants for licences tested that day. Amongst these, he found that there were three applications for foreigners who had already passed and been issued with learners licences. All the licences issued on that day were seized. The witness testified that the addresses used in support of the applications for learners licences were false. Only Lapisso was traced and he confirmed that he had not completed the application forms and that the proof of residence had been arranged by the applicant after the deal was facilitated by a third party, since Lapis could neither read nor write English. The witness testified further that the applicant had not been in the testing centre at the time; he was contacted and found at a petrol station nearby. His car was searched and a number of application for learners and driving licences were found in his boot, with copies of identity documents. When the applicant was questioned, he claimed he came from a driving school. This was found to be untrue. It was also found that the signatures of the learner’s applicants were not the same. Some were not signed, some not dated, and other forms were blank. The applicant was then arrested. The applicant testified that he was on duty on 7 March 2016, issuing learners licences. He took lunch at about 14:00 hours and went to a petrol station where he was confronted by the SAPS. At the same time, his car was searched. The explanation proffered by the applicant was that some of the application forms found in dispute were not dated because he was not sure whether the applicants would return on the same date. He foresaw no difficulty in keeping the applications in his car since he was paid a car allowance intended to assist him in the performance of his job. The forms in question where those submitted by applicants who had failed the eye test, and the applicant explained that the forms were kept in the boot of his car for safekeeping since he was ‘still busy’ with them. The applicant denied having used Skhosana’s PIN code. Skhosana on the other hand testified that the applicant had approached on 7 March 2016, carrying documents, and requested her to permit him to use her computer. She agreed to allow him to use the system using PIN code, and was later asked to sign documents given to her by the applicant on the basis that they had been captured using her PIN code.

[5] In his analysis of the evidence, the arbitrator came to the following conclusion:

[34] After carefully consideration of the evidence presented by both parties before me, judged carefully, taking into account supporting documents including the applicant’s defence, the following was noted. The respondent acted on a tipoff to the effect that the applicant will be issuing fraudulent learners licences on the 7 March 2016. This tipoff was escalated to the Hawks, a division of SAPS who acted immediately

[35] When the SAPS went to the testing centre and ask to see all the applications of individuals who were tested that day, it was discovered that there were learners licences which were already issued including that of the three foreigners, namely: Mr Ayese, Mr Lapisso and Mr Jakamo. These foreigners seem to be from the eastern part of Africa such as Somalia, Ethiopia.

[36] It is the respondent’s case that these individuals who would not have passed learners since they did not sit and write the test because they cannot read or write English. Even communicating with them in English was a night mere (sic). This testimony was given by captain Nkwanyana who testified to have directly interacted with Mr Lapisso.

[37] The critical question to be asked is which version between the respondent and that of the applicant is the most probable version which also satisfies the requirements of section 190 (2). In terms of the required civil scale, I found the respondent version to be not only probable, but also consistent with the tipoff and documents that was found on the scene. The respondent’s version outweighs the applicant’s defence in all material respects.

[6] In particular, the arbitrator found it significant that the three foreign nationals could not have obtained or passed the test on account of the language barriers in place, and found that this was consistent with the tipoff received by the third respondent. Also sustaining the probability of the third respondent’s version was the use of the fraudulent proof of residence in the form of utility bills which clearly had no connection to the persons who proffered them. The applicant was not able to offer any credible explanation for any of these facts. Further, the arbitrator found that the applicant could provide no reasonable explanation as to why he was found with a number of applications in the boot of his car during the afternoon. It was also significant that some of the forms were not dated, some signed only by him and others left blank. The explanation proffered by the applicant, that the application forms were in respect of prospective learners who had failed the eye test and had been sent to an optometrist and were thus expected to return, was rejected. The arbitrator found that that was no reason for the applicant to keep the forms with him, let alone take them with him during the late afternoon on what he described as a lunch break. In any event, the applicant is unable to explain the applications that had been dated without signature. All of these facts pointed to the following conclusion:

[42] the tipoff, police investigations report, fraudulent proof of residence, issued and signed learners to foreigners, applications found in his car and absence of credible defence suggest that Mr Mabuza was on a well-coordinated clandestine project of trading in learners and driving licences to members of public. I’m very mindful of the fact that one piece of evidence would not have been sufficient to conclude the guilty version, but the collective pieces of evidence as indicated in paragraph 42 above are enough to conclude that the applicant committed the misconduct. There will be no other definition of this kind of contact other than fraud and corruption which calls for immediate dismissal.

[7] The applicant has proffered a number of grounds for review which viewed cumulatively, suggest that the arbitrator committed a reviewable irregularity in his assessment of the evidence and in particular, that his reliance on hearsay evidence had the effect of causing the applicant to be deprived of a fair hearing.

[8] The test to be applied is well-established. This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one on more factors amounted to a process related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask or whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).

[9] The applicant appears to consider the test that the arbitrator was to apply to be that applicable in the criminal courts, and the test to be applied in the present circumstances one of an appeal rather than a review. The arbitrator was required to decide which of the versions before him was the more probable; and this court is required to decide, not whether he was right or wrong, but whether the conclusion to which he came falls within a band of decisions to which a reasonable decision-maker could come on the evidence. In short, the arbitrator decided that the probabilities pointed in favour of the version presented by the third respondent’s witnesses, and against the applicant, whose explanation for his conduct was found to be improbable. In my view, the arbitrator cannot be faulted for coming to the decision that he did. To the extent that the applicant complains that the arbitrator accepted hearsay evidence, while it is correct that Madonsela was not called as a witness in relation to his denial that any of the foreign nationals resided at his address (which had been given as an address for the purposes of an application for a learners licence), this is not material. The police witnesses who testified stated that they had traced the addresses used and that these addresses were those of persons other than the foreign national applicants for learners licences. Similarly, in regard to the applicant’s complaint that Lapisso was not called as a witness is only relevant to the proceedings was that he had been traced by the SAPS and that he had confirmed that he did not complete any applications for a learner’s licence since he could not read or write English. Again, I fail to appreciate how the failure to call Lapisso as a witness was fatal to the third respondent’s case. Insofar as the applicant suggests that the arbitrator erred in rejecting the applicant’s explanation as to the documents found in the boot of his vehicle, I fail to appreciate how it can be said that the arbitrator acted unreasonably in rejecting the fanciful explanation put up by the applicant, particularly in circumstances where the version that he originally proffered, i.e. that he was a driving instructor, was shown to be false.

[10] In short, the arbitrator appreciated the nature of the enquiry that he was expected to conduct, he applied his mind to the evidence and reached a decision which is reasonable having regard to the evidence before him. The arbitrator did not commit any reviewable irregularities in the course of the proceedings under review, and the outcome of the proceedings, in the form of the arbitrator’s award, falls within a band of decisions to which a reasonable decision-maker could come on the available evidence. The application stands to be dismissed.

[11] Neither party pursuant the issue of costs and consistent with the approach ordinarily adopted in this court, the requirements of the law and fairness are best met by each party bearing its own costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court

APPEARANCES

For the applicant: Mr Khanyile, Bongani Khanyile Attorneys

For the third respondent: Adv R Mathebula, instructed by BV Mbungela Attorneys