Mafete v Commission for Conciliation, Mediation and Arbitration and Others (JR1479/21) [2024] ZALCJHB 418 (17 October 2024)

FLYNOTES: .

LABOUR – Dismissal – Customs official – Conduct when executing duties allows for use of force, within limits contemplated in Customs Act – Entitled to raise provisions of Act as a defence to justify conduct when charged with assault when executing duties – Provided such conduct was necessary to stop a person from evading paying fees levied against their dutiable goods – Award reviewed and set aside – Dismissal substantively unfair – Customs and Excise Act 91 of 1964, s 4(10).

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JR 1479/21

In the matter between:

TAOLO

HLOMPHO MAFETE Applicant and THE COMMISSION FOR CONCILIATION,

MEDIATION

AND ARBITRATION First Respondent

PIETER WILLEM LOURENS N.O Second Respondent

SOUTH

AFRICAN REVENUE SERVICES Third Respondent

Heard: 1 August 2024

Delivered: 17 October 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 17th of October 2024 is deemed to be the date of delivery of this judgment).

Summary: The conduct of customs officials when executing their duties allows for the use of force, within the limits contemplated in Section 4(10) of the Customs & Excise Act No. 91 of 1964, as amended. When charged with assault when executing their duties, the customs official is entitled to raise, as a defence, the provisions of the Customs Act to justify their conduct; provided such conduct was necessary to stop a person from evading paying fees levied against their dutiable goods.

JUDGMENT

NHLAPO, AJ

Introduction

[1] This is an application to review and set aside and/or correct the arbitration award dated 17 May 2021 (delivered to the parties on 20 May 2021) in terms of section 145 of the Labour Relations Act[1] (the LRA).

[2] The review application was lodged on 28 July 2021, which is not within the six (6) weeks prescribed in the LRA. The application is thus supported by a condonation application to the extent of its lateness.

Condonation

[3] The review application is three (3) to four (4) weeks late.

[4] The reasons for the lateness appear to be centered on the legal insurer not being willing to pay the erstwhile attorneys’ preferred rate.

[5] Unfortunately, the erstwhile attorney only communicated to the applicant the unhappiness with the tariff paid at arbitration proceedings as well as the proposed tariff for the review on 16 June 2021.

[6] Notwithstanding the above, the applicant and the erstwhile attorney agreed that the erstwhile attorney would engage the legal insurer.

[7] On 23 June 2021, the erstwhile attorney advised the applicant that he could not resolve the issue with the legal insurer and that he could therefore no longer represent the applicant.

[8] The applicant thereafter instructed Elton de Bruin Attorneys (de Bruin Attorneys) who requested that he be furnished with all the records of the disciplinary hearing and arbitration proceedings. On 30 June 2021, the applicant uplifted the records from the erstwhile attorneys and made copies for the new attorneys. The records were received by the new attorneys on 2 July 2021.

[9] On 6 July 2021, de Bruin Attorneys informed the applicant that they were still without an agreement with the legal insurer. This situation persisted until de Bruin Attorneys decided to assist the applicant whilst waiting for the legal insurer to decide.

[10] The third respondent is not disputing the explanation provided by the applicant, which explanation I find adequate to account for the period of delay.

[11] The third respondent’s focus in opposing the condonation application is the applicant’s prospects of success. In this regard, the third respondent states that once it is accepted by the applicant that he assaulted the complainant, that should be the end of it all. I do not think the issue is as simple as that.

[12] Given the explanation for the delay and the prospects of success, I therefore grant condonation as the matter also raises important issues on the powers and acceptable conduct of customs officials when faced with a similar circumstance to that of the applicant.

Material facts

[13] The applicant commenced employment with SARS in 2022 as a Revenue Administrative Clerk at Kapfontein Border Post between Botswana and South Africa.

[14] In late 2004, the applicant was appointed as a Call Centre Agent at SARS’ Cape Town offices, whereafter he was appointed as Customs Specialist for between 2 – 3 years.

[15] During 2007, the applicant was appointed as a Customer Inspector and reassigned to Kapfontein Border Post between Botswana and South Africa.

[16] In 2015 the applicant was appointed as the Operations Manager and reassigned to the Ramatlabama Border Post – this is the location where the incident occurred which forms the subject matter of these proceedings.

The incident of 25 February 2018 as captured in the pleadings

[17] On Sunday, 25 February 2018, the applicant was on duty in his capacity as Operations Manager at the Ramatlabama Boarder Post, between Botswana and South Africa.

[18] On the day in question, the applicant was in his office when he heard elevated voices outside, where the applicant found two (2) ladies arguing with customs officials. The applicant intervened after he realized that they were unhappy about the fees levied against their dutiable goods.

[19] Notwithstanding his best efforts, the ladies remained aggressive throughout the exchanges and completely failed to co-operate; they also openly defied lawful instructions from customs officials to the point where it was clear that they did not intend to comply. They vehemently refused to hand over their passports, which was a requirement in the whole enforcement process when dealing with dutiable goods for the purpose of the Customs Control Act[2] (the Act).

[20] After a long time explaining the process and after determining that there would be no co-operation from these ladies, the applicant ordered the colleague closest to the door, Elizabeth Phuhuhudu, to take possession of the goods. This order elicited further agitation from both ladies, whereafter the applicant decided to intervene and take control of the goods.

[21] At that moment, once the applicant had taken possession of the first bag, the other lady, Ms Priscah Munatsi (the complainant), grabbed the second bag and made for the door, she ran out of the office and the applicant pursued her. The applicant caught up with her and dispossessed her of the bag.

[22] In the continued motion of apprehending the applicant, the bag fell to the ground where after the applicant turned to take possession of the bag. At that juncture, the complainant came charging from the applicant’s blindside with the intention of grabbing the bag again. The applicant then raised his hand with the intention of warding off her advances.

[23] As a result of the above incident, on 3 May 2018, following the applicant’s suspension in April 2012, the applicant was served with a notice of disciplinary hearing on the following charges:

‘Count 1: Assault – In that on or about the 25 February 2018 and at or near the SARS Office in Ramatlabama you acted maliciously towards Priscah Munatsi, a foreign national, travelling through the border post, by attacking her physically, to wit you did unlawfully and with intention apply force to the person of Priscah Munatsi, causing Priscah Munatsi to suffer actual physical injuries by you forcefully hitting Priscah Munatsi with your forearm on her neck…

Count 2: Inappropriate/irresponsible behavior – In that on or about 25 February 2018 and at or near the SARS Office in Ramatlabama you acted with malice towards a taxpayer, Priscah Munatsi, who was travelling through the border post, by physically attacking her, causing actual harm to a taxpayer.’

[24] A protracted disciplinary hearing was held which found him guilty on the charges preferred against him and was accordingly dismissed. A referral was made to the CCMA challenging the substantive and procedural fairness of his dismissal. The commissioner found his dismissal to be procedurally and substantively fair.

[25] The applicant then lodged a review application. In these proceedings, the applicant concedes to have assaulted the complainant as contemplated in the legal definition of “assault”.

[26] Notwithstanding the concession, the applicant asserts that at the time of the incident, he was performing functions in terms of the Customs and Excise Act,[3] (the Customs Act).

[27] The third respondent further asserts that the applicant’s reliance on section 4(10) of the Customs Act is irrelevant once the applicant has admitted that he assaulted the foreign lady.

The arbitration proceedings

[28] In the arbitration proceedings the applicant raised both substantive and procedural fairness as the issues in dispute. On substantive fairness, he disputed breach of the rule, the consistent application of the rule and that dismissal was the appropriate sanction. On procedural fairness, the applicant had an issue with the proceedings of 15 August 2018 wherein he was required to proceed in the absence of a legal representative, further that the chairperson was biased, and that on 30 July 2019 the disciplinary hearing proceeded on short notice.

[29] Having dealt with the other issues identified by the applicant as being for determination, the commissioner then stated: that the crux of the matter in casu is however the applicant’s denial that he contravened the rule.

[30] The evidence led by the third respondent included that of an officer stationed at the national control room who also narrated the video footage of the incident. Evidence was also led by the line manager to whom the complainant and her sister reported the incident. The complainant also gave evidence. All the witnesses were shown the video footage to which they all agreed in so far as what it

depicted. I must point out that none of the witnesses physically witnessed the incident. This of course excludes the complainant.

[31] The commissioner thereafter made the following findings translating into an award that the dismissal was procedurally and substantively fair:

‘166. That the video footage was the best piece of real evidence and the applicant’s “Achilles heel”.

167. When considering the weight, the video footage adds as real evidence, to the respondent’s case, it is clear that the applicant is in fact guilty of the allegations of misconduct laid against him. Legally, assault is defined as the unlawful and intentional application of force to a person or a threat of such application of force. No reasonable person will be able to look at the footage and deny that the applicant assaulted Priscah. His defence that he was warranted to apply force in terms of section 4(10)(b) of the Customs Act is also far from the justifiable. At the time that he struck Priscah, the bag was on the ground, he was actually on his way to pick it up when he stopped, turned towards he [her] and struck her. All he had to do was pick up the bag and walk back, which he did afterwards.’ (Own Emphasis)

Grounds for review

[32] The applicant contends that the arbitration award is vitiated by defects constituted by misconduct and gross irregularity in the conduct of the arbitration for the following reasons:

32.1 That the commissioner did not fully understand the nature of the offence and the resultant dispute emanating therefrom. This, the applicant says, constitutes misconduct, alternatively a gross irregularity in the conduct of the arbitration proceedings before the First Respondent, thus rendering the award reviewable. This ground is also premised on the failure of the commissioner to mention the applicability and/or non-suitability of any of the legislation relied on by the applicant to justify his actions. The applicant further amplifies this ground, stating that the commissioner did not fully comprehend the legal framework under which customs officials operate and thus did not understand the nature of the office and the resultant dispute.

32.2 Further the commissioner exceeded his authority and acted beyond the powers conferred on him in section 188 of the LRA, as amended, in that he deliberately, alternatively negligently, ignored crucial evidence presented by the applicant to prove his case.

32.3 That the commissioner did not properly apply his mind on whether the evidence presented by the third respondent’s witnesses constituted hearsay evidence.

32.4 Lastly, that the sanction was not appropriate.

Legal framework

[33] The test for review is trite. In Sidumo & another v Rustenburg Platinum Mines Ltd & others,[4] the Court held that “the reasonableness standard should now suffuse s 145 of the LRA”, and that the threshold test for the reasonableness of an award: “… Is the decision reached by the commissioner one that a reasonable decision maker could not reach?...”[5]

[34] This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the threshold of

reasonableness.[6] In applying the test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable.[7] In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)[8] the Court said:

‘… A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

[35] I now turn to the analysis of the evidence led in the arbitration proceedings.

Analysis

[36] The applicant concedes that the incident falls within the legal definition of an assault. The concession, in the third respondent’s view, is fatal to the applicant’s review application.

[37] Notwithstanding the concession, the applicant raises a vital point, which is that on the day of the incident, he was acting in his capacity as a customs official with regulatory powers to act in the manner he did. Pertinently, he further states:

‘In hindsight, one may argue, that I may have, exceeded my authority, which, with respect, no one has raised to date hereof and even so, I may still hold a different view as I always laboured under the impression that my actions fell within the reasonable limits

prescribed by the governing statutes.’ (Own Emphasis)

[38] To the above, the third respondent retorts:

‘I take note of the contents of this paragraph which is totally misplaced and irrelevant to the review proceedings.’

[39] The applicant takes it further at sub-paragraph 6.9 and mentions that he was “permitted in terms of the governing legislation, section 4(10) of the Customs and Excise Act, No. 91 of 1964 to act in the manner” he did.

[40] The third respondent again asserts not to understand the “significance of these paragraphs in light of the applicant’s admission that he assaulted the foreign lady”.

[41] The applicant’s final submission on section 4(10) of the Customs Act is that he acted within the confines of the law when he tried to retrieve the bag from Ms Munatsi, which permitted him to use force in effecting a certain outcome; his intention was to retrieve the bag which was a dutiable item, and it was his duty to detain same.

[42] I noted that the applicant was not raising section 4(10) of the Customs Act for the first time. At least he had done so in the arbitration proceedings.

[43] The commissioner’s finding on the relevance of section 4(10) of the Customs Act is:

‘His defence that he was warranted to apply force in terms of section 4(10)(b) of the Customs Act is also far from the justifiable. At the time that he struck Priscah, the bag was on the ground, he was actually on his way to pick it up when he stopped, turned towards he [she] and struck her. All he had to do was pick up the bag and walk back, which he did afterwards.’

[44] I do not agree with the third respondent’s posture that section 4(10) of the Customs Act is irrelevant. Furthermore, I do not agree with the conclusion reached by the commissioner for the reasons that follow.

[45] It is important to first deal with what section 4(10) of the Customs Act provides. Section 4(10) of the Customs Act, which sanctions the use of force in the exercise of the general duties and powers of officers’ states:

‘(a) An officer may stop any person whom he has reason to suspect of having dutiable goods…

(b) If such person fails to stop, the officer may take such action, including the use of force, as he may deem necessary to stop such person.’ (Own Emphasis)

[46] The proper approach to the application of the above section of the Customs Act is to consider the evidence of both the complainant and the applicant, against what is permissible in terms of section 4(10) of the Customs Act.

[47] The starting point in the consideration of the evidence is what transpired prior to the incident, and thereafter a consideration of the incident.

[48] Prior to the fight and/or assault, the complainant refused to pay the fees levied against the dutiable goods and further refused to hand over her bag. When the applicant intervened, she ran out of the customs office with the bag containing the dutiable goods

that she refused to pay for. The applicant gave chase and caught up with her. In that commotion, the complainant lost her grip on the bag. The applicant then went to pick up the bag and proceeded to the office.

[49] It was when the applicant went to take the bag from the ground that the incident constituted the basis of the charges and the finding of guilty occurred.

[50] The above sequence of events prior to the fight and/or assault is further corroborated by the video footage presented at the arbitration proceedings, to which the commissioner referred in his findings.

[51] In so far as the incident is concerned, the complainant testified as follows:

‘After he hold my collar push me when I get strength to stand strong that’s when I saw that it’s a fight it’s no longer out of let me because he is doing what he’s not supposed to do let me also take my bag that’s when he used his hands now to hit me.’ (Own Emphasis)

[52] On the other hand, the applicant testified as follows regarding the incident:

‘Realizing that there was a chance to get the bag now, because she had moved backwards, I turned my head so that I can turn and take my bag. That’s when she charged at me and said: you are not going to take my bag. Still with the fists.’

[53] The above evidence of both the complainant and the applicant shows that the complainant’s approach was not peaceful, and innocent as set out by the commissioner in his review of the video footage. In fact, an analysis of the evidence leaves me with an impression that the complaint’s approach was aggressive despite being on the wrong side of the law.

[54] Further to the above, an analysis of the incident (fight and/or assault) reveals that the complainant approached the applicant, who was heading for the bag, with the intention of fighting for her bag.

[55] The pertinent question that then arises is: what is it that the applicant was supposed to do under such circumstances given that section 4(10) of the Customs Act permits the use of force to stop such a person whom he suspects of having dutiable goods?

[56] The commissioner suggests that the applicant should have proceeded to take the bag and walk to the office. However, this finding is not reasonable in that it ignores the complainant’s stated intention when approaching the applicant, which was to take her bag. Importantly, the commissioner disregarded that the complainant viewed the exercise of the statutory powers by the applicant as a “fight”.

[57] My view is that the commissioner should have concerned himself with the conduct of the complainant, her own evidence that it was “now a fight”, and that she approached the applicant with the intention to “grab her bag”. The above evidence needed to be considered to decide whether the applicant’s use of force was necessary to ward off the complainant’s approach. I find that this was the appropriate approach given the wording of section 4(10)(b) of the Customs Act.

[58] The commissioner thus committed a gross irregularity resulting from failure to test the conduct of both the applicant and complainant against section 4(10) of the Customs Act. The result of such an irregularity is an outcome that does not fall within the bounds of reasonableness.

[59] It was unreasonable of the commissioner to expect the applicant to continue walking to the office when being approached by the complainant, who, according to her own evidence, viewed it all as a “fight” and was heading to grab her bag.

[60] The applicant’s use of one hand to push the complainant was the use of force necessary to stop the complainant’s aggressive approach, which approach was intended to further her intention not to comply with the law. The use of one hand is also evidenced by the video footage, which I have also viewed upon prompting of the parties.

[61] I find that if the complainant had not approached the applicant with the attitude of fighting for her bag, the applicant would have picked up the bag and went to the office. This finding is supported by the fact that once the applicant had used the necessary force (the one hand to push the complainant away); he thereafter proceeded to the office. That is, the applicant did no more than to ward off the complainant’s approach, which approach was neither innocent nor friendly.

[62] I find that the arbitration award must be reviewed and set aside. Further, it must be substituted with a finding that the dismissal was substantively unfair. This is, in the main, due to the commissioner’s failure to assess the applicant’s and complainant’s conduct against what is permissible in terms of the Customs Act. I find that such an assessment would have resulted in a reasonable outcome. I thus do not agree that the applicant committed any misconduct on 25 February 2018.

Remedy

[63] The Constitutional Court decision in SA Commercial Catering & Allied Workers Union & others v Woolworths[9] is instructive insofar as the appropriate remedy is concerned. Khampepe J writing for the majority set out the law with regard to reinstatement as follows:

“[43] It is by now axiomatic that reinstatement is the primary remedy that the LRA affords employees whose dismissals are found to be substantively unfair. In Equity Aviation this court held that the ordinary meaning of the word “reinstate” is –

“to put the employee back into the same job or position [that] he/she occupied before the dismissal, on the same terms and conditions”.

[44] Accordingly, an employee that is reinstated will consequently resume their employment on the same terms and conditions which prevailed at the time of the dismissal.

[45] Reinstatement is thus aimed at placing the employee in the position that they would have been in or that they would have occupied, but for the unfair dismissal. Furthermore, reinstatement is intended to safeguard employment by restoring the employment contract.

[46] Reinstatement must be ordered when a dismissal is found to be substantively unfair unless one of the exceptions set out in section

193(2) applies, namely that the affected employees do not wish to continue working for the employer; the employment relationship has deteriorated to such a degree that continued employment is rendered intolerable; it is no longer reasonably practicable for the employees to return to the position that they previously filled; or the dismissal is found to be procedurally unfair only.

[47] As affirmed by this court previously, the fact that a significant period might have lapsed from the date of dismissal to the date of the judgment is not a bar to reinstatement. An employee whose dismissal is substantially unfair should not be disadvantaged by the delays of litigation where she or he has not unduly delayed in pursuing the litigation.

[49] The LRA does not define the term “reasonably practicable”. However, guidance can be sought from various authoritative court decisions. The Labour Appeal Court in Xstrata held:

‘The object of [section] 193(2)(c) of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the job no longer exists, or the employer is facing liquidation or relocation or the like. The term “not reasonably practicable” in [section] 193(2)(c) does not equate with the term “practical”, as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably

possible in the sense that it may be potentially futile.’

It is thus evident that the term “not reasonably practicable” means more than mere inconvenience and requires evidence of a compelling operational burden.

[50] An employer must lead evidence as to why reinstatement is not reasonably practicable and the onus is on that employer to demonstrate to the court that reinstatement is not reasonably practicable.” (Own Emphasis)

[64] In this instance, the third respondent has not tendered evidence that reinstatement is not reasonably practicable. Furthermore, none of the other exceptions set out in section 193(2) of the LRA find application.

[65] Reinstatement is therefore the primary remedy that finds application taking into consideration my finding that the dismissal was substantively unfair.

[66] In the premises, the following order is made:

Order

1. Condonation is granted for the late review application.

2. The arbitration award is reviewed and set aside.

3. The arbitration award is substituted with an order that the applicant’s dismissal was substantively unfair.

4. The applicant is reinstated retrospectively with effect from 17 May 2021, being the date of the award.

5. There is no order as to costs.

S.B. Nhlapo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. T. Snyders Instructed by: Elton de Bruin Incorporated For the Respondent: Adv. L.H. Adams Instructed by: RW Attorneys

[1] Act 66 of 1995, as amended.

[2] Act 31 of 2014.

[3] Act 91 of 1964.

[4] (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC).

[5] Ibid at para 110. See also Commercial Workers Union of SA v Tao Ying Metal Industries & others (2008) 29 ILJ 2461 (CC); [2008] ZACC 15 at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation & Arbitration & others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC) at para 96.

[6] See Duncanmec (Pty) Ltd v Gaylard NO & others (2018) 39 ILJ 2633 (CC); [2018] 12 BLLR 1137 (CC) at para 43.

[7] Ibid at para 41.

[8] (2013) 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA) at para 25. See also Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC)[2007] ZALC 66; ; [2014] 1 BLLR 20 (LAC) at para 14; Monare v SA Tourism & others (2016) 37 ILJ 394 (LAC); [2016] 2 BLLR 115 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC); [2015] 2 BLLR 105 (LAC) at paras 15 – 17; National Union of Mineworkers & another v Commission for Conciliation, Mediation & Arbitration & others (2015) 36 ILJ 2038 (LAC) at para 16.

[9] (2019) 40 ILJ 87 (CC); 2019 (3) BCLR 412 (CC).