Mbunjela v Safety and Security Sectoral Bargaining Council and Others (C321/2021) [2024] ZALCCT 33 (12 July 2024)

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

HELD AT CAPE TOWN

Not reportable

Case no: C321/2021

In the matter between:

LINDA SIGRET MBUNJELA

Applicant

And

SAFETY AND SECURITY SECTORAL BARGAINING

COUNCIL

First Respondent

COMMISSIONER MAUREEN DE BEER

Second Respondent

MINISTER OF POLICE

Third Respondent

Heard: 4 July 2024

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date for handing down judgment is deemed to be on 12 July 2024

Summary: application to review – review dismissed with costs – applicant failed to prove that commissioner failed to properly

consider the evidence or that the decision is one that a reasonable decision maker could not reach.

JUDGMENT

DE KOCK, AJ

Introduction

[1] This matter concerns an application by the applicant (hereafter referred to as “Mbunjela”) to review and set aside an arbitration award given by the second respondent (hereafter referred to as “De Beer”) in her capacity as a panellist of the Safety and Security Sectoral Bargaining Council (hereafter referred to as “SSSBC”). The application has been brought in terms of section 145 of the Labour Relations Act[1] (‘the LRA’).

[2] The matter arose from the alleged unfair dismissal of Mbunjela for allegations of misconduct. The arbitration proceedings before De Beer took place on 22 February 2021 and on 1 April 2021. De Beer, following the conclusion of the arbitration proceedings, issued an award dated 29 April 2021 wherein she found that Mbunjela’s dismissal was substantively fair. It is this determination that gave rise to the current review application.

[3] The parties agreed that the review application is properly before me, and no jurisdictional issues were raised. The opposed review application was heard on 4 July 2024.

The relevant background

[4] Mbunjela was appointed by the third respondent (hereafter referred to as “SAPS”) as a sergeant at Visible Policing at Grabouw Police Station. He had some 16 years’ service at the time of his dismissal. Mbunjela was charged in terms of section 40 of the Police Service Act 68 of 1995, read with the South African Police Service Disciplinary Regulations of 2016. Mbunjalo was found guilty, and dismissed for:

4.1 Serious misconduct as contained in Regulation 5(3)(t): Improper, disgraceful and or unacceptable conduct, by assaulting N[…] S[…], with his hands, fists, and/or feet; on several places on her body; on or about 1 April 2019, at or near T[…] M[…] Street, Grabouw; and

4.2 Misconduct in terms of regulation 5(3)(j): Obtaining or attempting to obtain exemption from duty by advancing a false excuse, in that a false medical certificate was submitted for periods 25 March 2019 to 26 March 2019; and 31 March 2019 to 3 April 2019.

The CCMA award

[5] De Beer noted that Mbunjalo only placed the substantive fairness of his dismissal in dispute. In respect of the first charge, De Beer found that whilst the assault took place when Mbunjela was off duty, his conduct may have a serious impact on the SAPS’s reputation and that the SAPS thus acted fairly in instituting disciplinary action against Mbunjela with regards the alleged assault that took place whilst he was off duty.

[6] De Beer analysed the evidence presented in respect of the alleged assault in some detail, and she addressed all the challenges raised on behalf of Mbunjela regarding the witnesses’ evidence. De Beer concluded, after a thorough analysis of each witness’ testimony, that the only conclusion she can draw on a balance of probabilities, was that S[...] was assaulted by Mbunjela.

[7] In respect of the second charge, De Beer again analysed the evidence presented in some detail, and she again addressed all the challenges raised on behalf of Mbunjela. De Beer concluded, after a thorough analysis of the evidence and taking into account the totality of the evidence, that Mbunjela was aware that the person who issued him with certificates was not a medical practitioner, and that he submitted the false medical certificates in an attempt to obtain exemption from duty.

[8] De Beer, in finding that Mbunjela’s dismissal was substantively fair, considered Mbunjela’s long service history and that there were no previous warnings of similar nature. De Beer however found that Mbunjela’s conduct was profoundly serious, and that assault is also a criminal offense. Such conduct seriously impacts on the nature of the work conducted by police officers, as well as the image of the SAPS. De Beer further found that Mbunjela’s conduct of submitting a false medical certificate also amounts to fraud; and had a serious impact on the employer-employee trust relationship. De Beer found that the cumulative effect of Mbunjela’s conduct has rendered the employment relationship intolerable, and that the sanction of dismissal was thus appropriate. Mbunjela’s claim was therefore dismissed.

The test for review

[9] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[2] the Court held that ‘the reasonableness standard should now suffuse section 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘…Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...[3]. In Herholdt v Nedbank Ltd and Another[4] the Court applied this reasonableness consideration as follows:

‘… 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.’

[10] This test has thus been applied as a two-stage review enquiry. Firstly, the review applicant must establish that there exists a failure or error on the part of the arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly, if this failure or error is shown to exist, the review applicant must then further show that the outcome arrived at by the arbitrator was unreasonable. If the outcome arrived at is nonetheless reasonable, despite the error or failure, that is equally the end of the review application. In short, in order for the review to succeed, the error or failure must affect the reasonableness of the outcome to the extent of rendering it unreasonable.

[11] Further, the reasonableness consideration envisages a determination, based on all the evidence and issues before the arbitrator, as to whether the outcome of the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds.[5] This necessitates a consideration by the review court of the entire record of the proceedings before the arbitrator, as well as the issues raised by the parties before the arbitrator, with the view to establish whether this material can, or cannot, sustain the outcome arrived at by the arbitrator. In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on the material, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, then the review application would succeed.[6]

[12] I will now proceed to consider the review application by the applicant against the above principles and test applicable to review applications.

Grounds of review

[13] Mbunjela’s first ground of review is that De Beer failed to apply her mind carefully on the matter in reaching her decision as set out in the arbitration award. It was argued that N[…] S[...] contradicted herself materially during her cross-examination. She could not explain to De Beer why, if she sustained serious injuries, the J88 (medical report) did not support the injuries she alleges she sustained during her alleged assault. She could not explain why she consulted the Doctor two days after the assault. Her statement was not consistent with her evidence, as well as her withdrawal statement that she made in the past against Mbunjela. It was also argued that she has a criminal record of theft which goes to the root of affecting her honesty, and that one can easily infer that she has a propensity of lying. She admitted that when she was previously arrested for theft, she had lied to the police by giving them an incorrect name.

[14] It was argued that De Beer dismally failed to apply her mind during the assessment of the witness’ testimony and thereby arrived at a wrong conclusion in her arbitration award. Based on the material contradictions that the witness made, De Beer should have at least made a finding on same, is it is material.

[15] It was argued further that the other biggest and gross mistake committed by De Beer is that she failed to carefully assess the testimony of the first witness pertaining to Dr Poswa. It was argued that this is more so, as there is no corroborating evidence to suggest that Dr Poswa was bogus and operated from a shack. Mbunjela is further not a doctor himself and is therefore not in a position to state whether Dr Poswa was bogus or not.

[16] Reference is made to the second witness who did not witness the alleged assault at all. De Beer failed to apply her mind carefully to the evidence led by the third witness. Neither could it be said that his evidence was corroborated at all. This also applies to the third witness called by the SAPS. None of them were party to or observed any alleged assault on the first witness. This simply means that the first witness was not corroborated at all regarding her allegations levelled against Mbunjela.

[17] It was argued that De Beer misdirected herself by rejecting the evidence of Siyabulela Mbunjela (Mbunjela’s brother) without proper evaluation for said rejection. It is evidence from the record that his evidence was merely rejected by virtue of him being Mbunjela’s brother.

[18] It was argued in conclusion that De Beer failed to properly assess all the evidence before her and therefore that the matter falls under the reviewable ones. De Beer’s decision is one that a reasonable decision maker could not reach. The court is therefore asked to review and set aside De Beer’s award.

Analysis of the grounds of review

[19] I will firstly address the grounds of review insofar as De Beer’s finding and conclusion regarding the assault is concerned. In order for the award to be reviewed, based on the case law referred to above, this court must find that De Beer failed to properly consider the evidence, failed to attach the necessary weight to the evidence before her, and arrived at a conclusion that a reasonable decision maker could not reach.

[20] The first ground of review relied on by Mbunjalo is that De Beer failed to apply her mind regarding various aspects of S[...]’s evidence, such as her failure to explain the inconsistency between the J88 and her evidence regarding her injuries; why she consulted the doctor two days after the assault; that she had a tendency of fabricating charges against Mbunjela; and that she has a criminal records of theft which goes to the root of her honesty.

[21] In perusing the award, De Beer clearly applied her mind to the challenges raised regarding S[...]’s evidence. De Beer found that S[...] denied having previous convictions. There is nothing on the record that shows that De Beer’s reliance on S[...]’s denial that she had previous convictions, was irregular, or that she did not apply her mind. In respect of S[...]’s withdrawal of previous assault cases against Mbunjela, De Beer finds that this relates to character evidence, and that such evidence is not a deciding factor when determining guilt. There is no reason why this court must find that that De Beer’s finding in this regard is irregular, not connected to the evidence, nor that she failed to apply her mind to the evidence before her.

[22] De Beer goes further and considered the inconsistency in S[...]’s evidence regarding the issue of the neighbour’s house and finds that it is irrelevant whether S[...] went inside the house or in the yard to call the police. I am unable to find that De Beer’s finding in this regard is not supported by the evidence placed before her. De Beer also considered the challenge to the inconsistencies sustained by S[...], and found that the injuries sustained, as testified to by S[...], was consistent with Van Wyk’s evidence. De Beer also addressed the J88 injuries versus S[...]’s evidence and found that the injuries were not different or inconsistent.

[23] De Beer finds that she cannot disregard the totality of S[...]’s evidence and that she will compare same to the rest of the evidence, which she then proceeds to do. Mbunjela’s ground of review insofar as it relates to De Beer’s failure to apply her mind regarding the evidence of S[...] has no merits whatsoever, as De Beer did exactly what she is now accused of not doing in the review application.

[24] The challenge to the award in respect of Van Wyk’s evidence, referred to as the second witness above, also has no merits. De Beer thoroughly addressed the challenges to his testimony in the award and compared Van Wyk’s evidence with that of S[...] in finding that Mbunjela, on a balance of probabilities, did assault S[...]. There is nothing raised in the review application that justifies a conclusion that De Beer did not apply her mind to the evidence presented, or that she failed to consider any aspect in relation to the evidence that was presented. As stated before, De Beer thoroughly addressed all issues placed before her to discredit the evidence of S[...] and Van Wyk.

[25] De Beer similarly addressed the evidence of Siyabulela and found that his evidence must be viewed with caution. Both Siyabulela and Mbunjela denied that any assault took place, when the evidence clearly shows that there was an assault. De Beer refers to the lack of any reason for Van Wyk to lie and finds that it appears thus that Siyabulela acted with bias to support his brother’s case. De Beer’s reasoning in arriving at this conclusion cannot be criticised. Insofar as it is alleged that De Beer failed to properly evaluate Siyabulela’s evidence, the award shows that De Beer did evaluate his evidence and that she came to a logical, and reasonable conclusion based on the evidence placed before her.

[26] The grounds of review in respect of De Beer’s finding that Mbunjela, on a balance of probabilities, did assault S[...] is therefore rejected in totality. The finding is based on the evidence presented, which evidence was fully and properly considered by De Beer, and the decision arrived at cannot be said to be one that any other reasonable decision maker could not reach. The evidence, on a preponderance of probabilities, shows that Mbunjela did indeed assault S[...].

[27] This then brings me to the grounds of review in respect of the second charge, i.e. the submission of false medical certificates. It is alleged that De Beer failed to carefully assess the testimony presented in support of this charge. This ground of review has no merits whatsoever, as De Beer carefully assessed all the evidence presented with regards the false certificate.

[28] De Beer first analysed Erasmus’ evidence that she could find no proof that Dr Poswa was a registered medical practitioner. De Beer thereafter analysed the evidence of Kuhn, who testified that they went to the address, and could find no doctor’s surgery at the address contained on the certificate. De Beer considered S[...]’s evidence that Dr Poswa was not a doctor and that there was a shack where people would get medical certificates. De Beer found that Mbunjela was unable to rebut this evidence, and that Mbunjela had an opportunity to verify the doctor’s credentials but failed to do so.

[29] De Beer’s finding that Mbunjela was aware that the person who issued him with the certificates was not a medical practitioner, and that he submitted the false medical certificates in an attempt to obtain exemption from duty, is a decision that is supported by the evidence. The submission that Mbunjela is not a doctor and therefore would not know whether Dr Poswa is a registered doctor is simply inconsistent with the evidence. De Beer’s finding in relation to the second charge cannot be said to be a decision that a reasonable decision maker could not reach. De Beer did not commit any irregularities in reaching this conclusion, and she carefully and properly considered all the evidence in arriving at her conclusion.

Conclusion

[30] Mbunjela failed to show that De Beer committed any irregularities in the conduct of the arbitration proceedings, that she failed to apply her mind to the evidence, and that the decision she arrived at is one that a reasonable decision maker could not reach. Given De Beer’s finding that Mbunjela is guilty of both charges and given the fact that she considered Mbunjela’s personal circumstances, as well as the seriousness of the offences and its impact on the SAPS, I see no reason to interfere with her finding that the dismissal was substantively fair.

Costs

[31] In terms of the provisions of section 162(1) of the LRA, I have a wide discretion when it comes to the issue of costs. I am mindful of the dictum of the Constitutional Court in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[7] when it comes to the issue of costs in employment disputes. In the matter before me, both parties sought costs. In the absence of a continued employment relationship between the parties, it is fair that costs should follow the result.

[32] In the premises, I make the following order

Order

1. The application to review the award is dismissed.

2. The Applicant is ordered to pay the Third Respondent’s costs.

C de Kock

Acting Judge of the Labour Court of South Africa

Representatives: For the Applicant: Adv S F Sibisi Instructed by: Symington De Kock Attorneys For the Respondents: Adv L Kalashe Instructed by: State Attorney

[1] Act 66 of 1995 (as amended).

[2] (2007) 28 ILJ 2405 (CC).

[3] Id at para 110.

[4] (2013) 34 ILJ 2795 (SCA) at para 25.

[5] Fidelity Cash Management Saervice v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 102.

[6] See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.

[7] (2018) 39 ILJ 523 (CC).