Pillay v South African Police Services and Others (JR1134/2013) [2016] ZALCJHB 244 (30 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR1134/2013

KASIVAN PILLAY

Applicant

and

SOUTH AFRICAN POLICE SERVICES

First Respondent

PUBLIC SERVICE SAFETY AND SECTORAL

BARGAINING COUNCIL

Second Respondent

I A SIRKHOTO NO

Third Respondent

Heard: 14 January 2016

Delivered: 30 June 2016

BAKKER, AJ

Introduction

[1] The Applicant, Mr Pillay, asks this court to review and set aside an arbitration award of the Third Respondent dated 24 March 2013 wherein she held the Applicant’s dismissal by the First Respondent to have been substantively and procedurally fair. The principal ground of review is that the Arbitrator[1] committed a gross irregularity in the proceedings in that she failed to apply her mind to the totality of evidence and arrived at a decision that no reasonable decision maker would have arrived at. The First Respondent employer, the SAPS, disputes any irregularity and insists that the Arbitrator arrived a conclusion that is both reasonable and unassailable.

The salient features

[2] Mr. Pillay was employed by the SAPS from August 1998 until his dismissal on 9 June 2010. At the time of his dismissal, he was employed in the capacity of a Warrant Officer at the Specialised Commercial Crimes Unit, Johannesburg. He enjoyed a clean disciplinary record.

[3] It is common cause that the Applicant was investigating Mr. Vusi Mkhonza, suspected of various crimes and was present on 1 December

2008 at Mkhonza’s Robertsham residence and again on 10 December 2008[2] at Mkhonza’s business premises at Regent’s Park.

[4] Mkhonza complained that the Applicant extracted R400 000.00 from him on 1 December 2008 and robbed his son Kwazi on 10 December 2008 of another R600 000.00.

[5] The Applicant and Captain TS Vertuin were arrested and criminally charged with extortion and armed robbery.[3] The criminal charges were subsequently withdrawn, apparently due to a lack of evidence.

[6] In the domestic enquiry, the Applicant was accused of:[4]

i. Malicious damage to property; and

ii. Extortion [1 December 2008 – R400K – Robertsham]; and

iii. Armed robbery [10 December 2008 – R600K – Regents Park]; and

iv. Intimidation; and

v. Defeating the course (sic) of justice; and

vi. Contravening any prescribed code of conduct, whichever may be applicable.

[7] The Applicant denied the allegations against him.

[8] Following a disciplinary process, the Applicant was found guilty and dismissed for (ii) extortion and (iii) armed robbery. Notwithstanding these damning findings, oddly in my view, the Applicant was found not guilty of intimidation, defeating the ends of justice and/or

contravening any codes of conduct. The Applicant’s co-accused, Captain TS Vertuin, who accompanied the Applicant on 10 December 2008 during the alleged armed robbery, was acquitted of all charges.

[9] The First Respondent’s main witness at the Arbitration, Mr. Vusi Mkhonza, explained that on 1 December 2008, he called his long-time friend and business partner Jason to urgently retain the services of a lawyer and to proceed to his Robertsham residence where he was being questioned by a policeman. Jason later arrived at the premises with the lawyer (who was identified only as Shiraz). The Arbitrator seemed to have accepted that, not only did Mkhonza’s lawyer encourage the payment of a R400K VAT fine directly to the Applicant but in fact contrived to deliver the cash to him. Mkhonza did not know if his business was paying taxes and handed the cash to his lawyer in order to avoid his arrest. When Mkhonza asked his business partner Jason and his lawyer Shiraz when and how they were going to hand over the ransom to the Applicant, they did not answer him. Neither Jason nor Shiraz testified at the arbitration. Kwazi testified that his father’s business partner, Jason, and the lawyer were seen leaving the Robertsham premises with a pink bag. He did not know what was inside the bag and was later informed by his mother that it contained R400 000.00 cash. The employer failed to lead any credible evidence that could establish an association between the Applicant and Jason and/or Shiraz. Regrettably, the Arbitrator does not tell us why she believes, as she must have, that the Applicant was in cahoots with Jason and/or Shiraz.

[10] Mkhonza explained that he had moved R600 000.00 cash to his business premises in Regent Park. When he was informed of the Applicant’s

presence at the Regent Park premises on 10 December 2008, he instructed his son Kwazi to take the cash and run away. Jason (the

business partner) and Shiraz (the lawyer) were again present at Regent Park on 10 December 2008 at some point in time. They were not called or subpoenaed to testify. No evidence was produced from anyone observing the Applicant pointing a firearm at Kwazi and robbing him from the R600 000.00 cash that he was carrying. Thandabantu, it is alleged, was present with Kwazi during the alleged robbery but was not called to corroborate Kwazi’s evidence. No money was ever traced back to the Applicant or retrieved from him. The employer failed to prove facts necessary to sustain the allegation of armed robbery.

[11] In his heads of argument, the Applicant suggests that the employer’s evidence was riddled with inconsistencies and improbabilities that any reasonable arbitrator should have treated with great caution. I agree that the contradictory evidence stands to be rejected. No credible evidence was adduced by the employer during the arbitration hearing and it is difficult to appreciate on what basis or evidence, the Arbitrator held that the employer proved a case of extortion and armed robbery against the Applicant. I do not believe the First Respondent cleared its onus of proof.

[12] Based on the circumstantial evidence, at best for the First Respondent, there might have been some suspicion of misconduct by the Applicant. Nonetheless, the evidence it tendered at the arbitration is inconclusive and not supportive of a finding that the Applicant

committed extortion and/or armed robbery. The Applicant’s evidence corroborated the evidence of Capt. Vertuin in material

respects and the credibility finding to the contrary was unreasonable. The inferences drawn by the Arbitrator cannot be said to be ‘the more natural or plausible conclusion from among several conceivable ones’ when measured against the probabilities’.[5] To my mind, it is equally or more probable that Mkonza, his wife Queen Ngubane and his son Kwazi invented a version of events designed to derail the police investigation into his own conduct and/or that the business partner, Jason, and their attorney Shiraz might have worked together to embezzle the money from Mkhonza.

[13] I find the employer’s evidence most improbable. The employer’s version is that Mr Mkonza was a prominent businessman who withdrew one million rand in cash, reserved for purchasing a truck at an auction, and handed this cash to his wife. He did not know where she kept the money nor was he aware whether his business was paying taxes. Acting on the legal advice of his lawyer, Shiraz, and in the presence of Shiraz and his business partner, Jason and his wife Queen Ngubane, he handed over R400 000.00 cash to a policeman in respect of a SARS VAT fine. It is an unconvincing story that no reasonable arbitrator should believe. Moreover, if the Applicant had attempted to extort money from Mkhonza, he would not have done so acting alone without a witness, in Mkhonza’s private residence equipped with a CCTV camera and in the presence of the three unsympathetic observers. It is peculiar why Jason and Shiraz were not called or subpoenaed to testify. There was no evidence suggesting that the Applicant had actually taken possession of the ransom money. On the probabilities, it is unlikely that he has. The charge of extortion was not proven.

[14] Significantly, in her award, the Arbitrator explained that she had ‘to decide whether the Applicant was a victim of circumstances’. The Arbitrator misconceived the nature of the enquiry and failed to apply her mind to the substantial merits i.e. whether the First Respondent proved, on a balance of probabilities, that the Applicant actually committed the armed robbery and/or extortion. The distorting effect of her misunderstanding prevented a fair trial of the issues. Nowhere in the arbitration award is there any reference as to whether the Arbitrator was satisfied that the Applicant actually committed the misconduct that he was dismissed for, as she was expected to do.[6] The Arbitrator fails to make any findings on critical issues such as when, where, how and from whom the Applicant received the R400 000.00

allegedly so extorted. The Arbitrator was required to direct her mind to the question whether the evidence before her established that the Applicant committed an armed robbery and/or extortion. She did not do so and failed to instil any confidence that she dealt with the substantial issues in dispute.

[15] Conceding that there were many conflicting versions as to what had actually occurred on 1 and 10 December 2008, far from resolving the conflicting versions, the Arbitrator simply states the disparities were not material and that the ‘litany of inconsistent

testimony’ is understandable given the four year lapse since the events occurred. She did not resolve these conflicting versions

and impermissibly relied on hearsay evidence. The employer’s failure to lead the evidence of Jason, Shiraz, Thandabantu and

Captain Mbatha, that potentially could have resolved most if not all of the ambiguities, disenabled the Arbitrator to resolve the

substantial merits of the case. There is no express finding that the Applicant actually committed the misconduct for which he was

dismissed.

The review

[16] It is not necessary to paraphrase the review test.[7] It is sufficient to confirm that the primary question for this Court is whether the Arbitrator, in finding the Applicant was fairly

dismissed, came to an unreasonable result. For the reasons set our hereunder, I find that the Arbitrator arrived at a conclusion that is unreasonable.

[17] An arbitration is a hearing de novo.[8] At an unfair dismissal arbitration, the employer carries the burden to prove the fairness of a dismissal.[9] If it is a misconduct dismissal, such as the present matter, evidence is required from the employer to factually demonstrate the misconduct that resulted in the employee’s dismissal. An arbitrator is enjoined to consider the fairness of a dismissal with reference to the evidential material placed before her.[10]

[18] An employer must prove its case on a balance of probabilities. When the evidence tendered by the employer is indecisive to prove the misconduct, the balance will tip against the employer. It is not clear from the Arbitrator’s award which facts did she found to have been proved and she has failed to resolve the factual disputes central to the dispute that she was enjoined to arbitrate. In my view, the Arbitrator failed to determine if the Applicant was guilty of the misconduct for which he was dismissed.

[19] As a basic tenet of our employment law, where an employer fails to prove facts necessary to establish culpability, the dismissal is unfair and a finding to the contrary must be wrong. In this case, the Arbitrator based her award on the fundamentally wrong premise that the First Respondent has adduced evidence sufficient enough to illustrate that the Applicant actually committed the misconduct in question. The employer did not prove its case against the Applicant. Accordingly, I am unable to agree with the Arbitrator’s conclusions, which in my view are obviously wrong.

[20] As Zondo, J held in his minority judgment in Toyota SA Motors (Pty) Ltd v CCMA and Others,[11] an arbitrator’s failure to resolve the dispute:

‘[123] … constituted both a gross irregularity in the proceedings and misconduct on the Commissioner’s part justifying the reviewing and setting aside of his award.

If a Commissioner does not decide whether the employee was guilty of the misconduct for which he was dismissed, he acts contrary to the requirements of section 138(1) of the LRA.’

[21] Whilst the Applicant may be criticised for entering Mkhonza’s private residence without a search warrant, for failing to timeously involve crime intelligence and for failing to properly complete his inquiry report, these facts on their own cannot impute that the Applicant was guilty of extortion and/or armed robbery; and any inference that it does, in my view, constitutes an unreasonable conclusion. I point out that the Applicant was found not guilty of malicious damage to property, intimidation, defeating the ends of justice and of contravening any prescribed code of conduct.

[22] Then, somewhat unexpectedly, the Arbitrator ultimately holds that ‘dishonesty in any form undermines the trust relationship and justifies dismissal’. This too supports my view that the Arbitrator misconceived the enquiry. The Applicant was not charged or dismissed for breach of trust.

[23] For the reasons sated above, the Arbitrator’s award is unreasonable and therefore reviewable.

Order

In the result, the following order is made:

1. The arbitration award issued by the Third Respondent is reviewed and set aside;

2. The arbitration award is substituted with an order that the Applicant’s dismissal was unfair;

3. The Applicant is to be reinstated with retrospective back pay from the date of dismissal;

4. The First Respondent must pay the Applicant’s costs.

________________

Bakker, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Advocate Ashika Ramlal

Instructed by:

Saleem Ebrahim Attorneys

For the Respondent: Advocate TK Manyage

Instructed by:

The State Attorney, Johannesburg

[1] The Third Respondent.

[2] The Arbitrator seemed to have accepted in her award that the second incident occurred at Regent’s Park on 10 December 2008. This is at variance with the First Respondent’s contradictory evidence that the armed robbery occurred at Regent’s Park on 3 December 2008. Both counsel appearing before me referred to the 10 December armed robbery incident, perhaps perpetuating the Arbitrator’s mistake. It is not necessary to resolve the ambiguity and for purposes of this judgment when I refer to the second incident of 10 December 2008, I refer to the alleged armed robbery at Regent’s Park.

[3] Record Volume 12 page 1235.

[4] Record Volume 12 page 1177.

[5] SA Post Office v Delacy and Another 2009 (5) SA 255 (SCA) at para 35.

[6] Item 7 Schedule 8 to the LRA – the Code of Good Practice: Dismissal.

[7] By now the review test is well established. See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC); and Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA); and Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC); and Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC).

[8] County Fair Foods (Pty) Ltd v CCMA and Others (1999) 20 ILJ 1701 (LAC) at para 11.

[9] Section 188 and 192(2) of the LRA.

[10] Wasteman Group v SAMWU & Others Unreported, CA 6/2011 (8 March 2011).

[11] (CCT 228/14) [2015] ZACC 40 (15 December 2015) at para 123-124.