POPCRU obo Motaung v Masege NO and Others (JR2630/13) [2016] ZALCJHB 398 (14 October 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2630/13

In the matter between:

POPCRU obo DL MOTAUNG

Applicant

and

COMMISSIONER KHEDITSE MASEGE, N.O.

First Respondent

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL (“SSSBC”)

Second Respondent

SOUTH AFRICAN POLICE SERVICE (“SAPS”)

Third Respondent

THE MINISTER OF POLICE

Fourth Respondent

Heard: 4 April 2016

Delivered: 14 October 2016

JUDGMENT

BEKKER AJ

Introduction

[1] This is an application for review brought by the Applicant, seeking to review and set aside the arbitration award issued by Commissioner Masege from the Safety and Security Sectoral Bargaining Council in terms of the provisions of Section 145 of the Labour Relations Act, (LRA)[1] holding that the dismissal of the Applicant employee, Mr Motaung, was substantively and procedurally fair. Condonation is also sought for the belated launching of the review application.

[2] The Applicant seeks an order that Captain Motaung be reinstated retrospectively into the position that he occupied prior to his dismissal by the South African Police Service (SAPS). The Application is opposed.

Background

[3] Captain Motaung was charged with three allegations of misconduct. After a disciplinary hearing was conducted he was found guilty of two of the three charges. It was recommended that he be dismissed from the SAPS’ service. This recommendation by the Disciplinary

Chairperson was confirmed by the Provincial Commissioner of the SAPS on 3 March 2012.

[4] The two charges that Captain Motaung was found guilty of were worded as follows:

‘Charge 2: The Applicant was charged in terms of Section 40 the South African Police Service Act 1995 (Act 68 of 1995) read with the South African Police Service Discipline Regulations 2006 in that he contravened Regulation 20(Q) of the said regulations in that at or near Springs SAPS between 2008 and 2010 he contravened the prescribed code of conduct for the service by driving a stolen vehicle a Toyota Quantum without registration numbers to Pongola.

Charge 3: The Applicant was charged in terms of Section 40 of the South African Police Service Act 1995 (Act 68 of 1995) read with the South African Police Service Discipline Regulations 2006 in that he contravened

Regulation 20(A) of the said regulations in that at or near Springs SAPS between 2008 and 2010 he failed to comply or contravened an act, regulation or legal obligation by accepting a stolen motor vehicle a Toyota Quantum unlawfully and intentionally from Sithembiso Gumede.’

[5] After an unfair dismissal dispute went unresolved at the Bargaining Council, the dispute was arbitrated by Commissioner Masege who held that Captain Motaung’s dismissal was both procedurally and substantively fair.

[6] The adjudication of the review application was postponed twice, on 15 December 2015 and again on 25 January 2016.

[7] The bundles of documentation used by the parties at the arbitration hearing were not part of the review record and the parties were directed to secure the bundles of documentation and to file same by 29 March 2016.

[8] A document marked “Annexure “A”” was filed by the State Attorney, the Third Respondent’s attorney.

The evidence on arbitration

[9] SAPS’ case was that during July 2010, a private investigator working on contract with SAPS observed a Toyota Quantum Minibus with no licence disc or registration numbers (as it was referred to in the arbitration process. The witnesses later stated that “registration numbers” also referred to number plates). The vehicle appeared suspicious and on closer inspection, it emerged that there were no VIN number on the vehicle. When the private investigator (Mr Z Dube) indicated to the driver of the minibus that the vehicle would be taken in to do certain inspections, the driver (a certain Mr Gumede) allegedly phoned Captain Motaung, whereafter Mr Dube spoke to Captain Motaung.

[10] Captain Motaung was advised by Mr Dube that the minibus is suspected of being stolen. Captain Motaung denied that he ever spoke to anyone about the minibus and further denied that he ever spoke to Mr Dube, as alleged.

[11] It is, however, common cause that Captain Motaung knew Mr Gumede well as he was a distant relative and that he wanted to borrow a car from Mr Gumede to travel to Pongola during late June 2010. The car that he wanted to borrow was out of service, but instead Mr Gumede borrowed him the Toyota Quantum Minibus that SAPS alleged was a stolen vehicle.

[12] Captain Motaung used the minibus for the trip to Pongola over a weekend at the end of June 2010.

[13] Captain Motaung confirmed that the minibus did not have a licence disc or number plates when it was borrowed to him by Mr Gumede. Captain Motaung alleges that there was only a temporary permit given to him, covering the dates that he was about to travel with the vehicle (from the 25th to the 28th of June 2010).

[14] Captain Motaung denied that he was aware at the time that the minibus was stolen. Mr Gumede allegedly advised him that he (Gumede) bought the vehicle and that he was in the process of registering the vehicle with the authorities.

[15] Captain Motaung stated that he only became aware of the fact that the minibus was a stolen vehicle when a certain Captain Ngwenya from SAPS arrived at his house with a search warrant.

[16] Captain Ngwenya testified at the arbitration hearing that Captain Motaung should have arrested Mr Gumede since he (Captain Motaung) was aware that Mr Gumede was suspected of having stolen property in his possession and furthermore that there was information available to Captain Motaung that Mr Gumede was involved in criminal activities.

[17] When the minibus was eventually inspected, it was found that the chassis and engine numbers were erased and that it had no licence plates or a registration disc but only a temporary permit, which permit was falsified. According to Captain Ngwenya, any reasonable person would have realised that the minibus was indeed a stolen vehicle. It is important to note that this inspection of the vehicle only took place on 15 July 2010, quite some time after the vehicle was returned by Captain Motaung to Mr Gumede (at the end of June 2010).

[18] Mr Gumede also testified at the arbitration hearing. He confirmed that the minibus in question was his vehicle and that he borrowed the minibus to Captain Motaung at the end of June 2010 since the vehicle had a valid permit at the time. Mr Gumede, however, disputed that the temporary permit contained in SAPS’ bundle of documentation was indeed the permit that was on the vehicle at the time that the vehicle was confiscated.

[19] Mr Gumede alleged that he was not aware at the time when he bought the vehicle that it was stolen.

The award:

[20] The crisp issue before the Commissioner was whether Captain Motaung was aware that the vehicle in question was stolen when he borrowed it from Mr Gumede. Both Mr Gumede and Captain Motaung averred that the vehicle had a valid temporary permit for the period that Captain Motaung used the vehicle (the trip to Pongola) and that none of the two were aware at the time that the vehicle was stolen.

[21] Captain Motaung was charged with and found guilty of driving a stolen vehicle to Pongola and that he failed to comply with, inter alia, a legal obligation not to accept a stolen motor vehicle for use from Mr Gumede.

[22] The Commissioner made an assessment of the relationship between Captain Motaung and Mr Gumede. The Commissioner concluded that since the two knew each other well, Captain Motaung consequently “knew the activities of Mr Gumede”.

[23] The Commissioner correctly posed the question to be answered as whether Captain Motaung knew or ought to have known that the vehicle was stolen when he used it?

[24] In assessing the evidence, the Commissioner relied on the temporary permit contained in SAPS’ bundle of documentation. On closer inspection, the temporary permit (containing registration number EPF 535 GP) was valid for the dates “20..-07-12 to 20..-..-…”. Although the permit is not fully completed, it appears that the inception date was 12 July 2010, some 14 days after Captain Motaung returned the vehicle to Mr Gumede. From what can be deduced from the permit, the chassis number starts with “TFRX18”, whilst the remainder of the number is illegible.

[25] The vehicle dealer’s name is unclear, it does not appear to contain a licence or registration number and the make and vehicle type is also not entered on the temporary permit.

[26] The spaces provided for the name of the registering authority and the receipt number (and the amount contained on the receipt) were ostensibly also not filled in.

[27] The Commissioner accepted SAPS’ documentary proof (i.e. the temporary permit contained in the bundle of documentation),

explaining that SAPS’ evidence regarding the temporary permit should be accepted since it was “more believable” when all the evidence on the general state of the motor vehicle is taken into account. The Commissioner rejected the version that the original or then valid permit was removed. The Commissioner concluded further that, it was highly unlikely that the vehicle had a valid temporary permit and Captain Motaung should have been aware that the vehicle is suspect and may have been stolen, especially if Captain Motaung was more cautious. The Commissioner held that Captain Motaung acknowledged that he (at least once before he borrowed the minibus) was informed that Mr Gumede is investigated for alleged criminal activity. This, in the Commissioner’s view, should have sufficiently cautioned Captain Motaung and he undoubtedly should have verified whether the minibus used by him (or to be used by him) was not a stolen vehicle especially seen in light of the fact that the vehicle had no licence disc or number plates, but only a temporary permit.

[28] The Commissioner concluded that there may have indeed been more to the relationship between Captain Motaung and Mr Gumede than meets the eye and that Captain Motaung could have indeed aided Mr Gumede in alleged criminal and/or corrupt activities.

Condonation, grounds for review and analysis

[29] The grounds for review as advanced by the Applicant are, in essence, the following:

29.1 That the Commissioner found the Applicant guilty of an offence he was already found not guilty of;

29.2 That the Commissioner relied on material that was not testified to at the arbitration hearing;

29.3 That the Commissioner failed to make an adverse finding against SAPS on a point where SAPS’ witnesses contradicted each other;

29.4 That the Commissioner relied on contradictory evidence and failed to understand the chronology of events of the matter;

29.5 That the Commissioner, in general, arrived at conclusions that are unsupported by the evidence.

[30] The Applicant has also applied for condonation for the late filing of the review application. The application was filed approximately 12 weeks outside the six-week period as allowed for by the provisions of the LRA. The Applicant’s union, POPCRU, avers that the delay was caused by an internal problem at its head office resulting in the matter only being referred to its attorneys during December 2013. The attorneys were closed for the annual recess and they only attended to the review application when the attorneys’ offices re-opened on 6 January 2013.

[31] The answering affidavit’s contents dealing with SAPS’ opposition to the application for condonation by the Applicant spans a scant single paragraph. In essence, SAPS denies that there are prospects of success on review and advanced that the Applicant’s

explanation for the delay is insufficient.

[32] At the hearing of the application, SAPS did not seriously challenge the issue of condonation.

[33] Although the delay is substantial, it is not incapable of being condoned. The Applicant has made out a case for condonation and it would not be in the interest of justice to refuse condonation on the grounds as advanced.

[34] Turning to the merits of the review application, it is important to note that Captain Motaung was accused by SAPS of firstly accepting a stolen motor vehicle “unlawfully and intentionally” from S Gumede and secondly by driving this stolen vehicle “without registration numbers to Pongola”.

[35] It is trite that the arbitration process is a hearing de novo. The employer should thus establish the fairness of the employee’s dismissal and, in the event that the Commissioner finds that the employee was indeed guilty of the disciplinary infractions he/she was charged with, then decide on the appropriateness of the sanction.

[36] In the current matter, Captain Motaung steadfastly denied that he was aware of the fact that the Toyota Quantum Minibus was stolen at the time when he borrowed it from Mr Gumede from 25 to 28 June 2010.

[37] Captain Motaung also denied that he had spoken to Mr Dube (the private investigator) on the mobile phone of Mr Gumede when Mr Dube visited Mr Gumede on or about 15 July 2010.

[38] It was also apparent that Mr Gumede denied that Mr Dube spoke to Captain Motaung on 15 July 2010 on his mobile phone.

[39] The evidence of SAPS (by means of the testimony of Mr Dube and Captain Ngwenya) was consistent on the aspect that Captain Motaung

ought to have known that the motor vehicle was stolen when he borrowed it and took control of it for the period 25 to 28 June 2010.

[40] According to SAPS’ witnesses, the fact that the vehicle had a temporary licence in the form of a temporary permit displayed on the window of the motor vehicle points to the fact that the vehicle may have been stolen. The Commissioner found no difficulty with this reasoning. The Commissioner, if he applied his mind properly to the evidence, should reasonably have arrived at a different conclusion on this aspect.

[41] Captain Motaung was not charged with negligent behaviour where he, for instance, should reasonably have been aware that he has accepted a stolen car to be used on a private trip to Pongola and that he, for instance, first had to inspect the motor vehicle’s vin number or engine and chassis number and further should have, for instance, ran these numbers through SAPS’ vehicle data base in order to ascertain if the vehicle was stolen or not.

[42] This is what SAPS was in fact advancing at the arbitration process, i.e. that Captain Motaung should have known at the time that the vehicle was stolen (meaning during the period of 25 to 28 June 2010).

[43] The evidence and the charges do not support this allegation.

[44] When the version was posed to Mr Dube in cross-examination by Captain Motaung’s representative in the arbitration hearing that Captain Motaung’s version is that on the day that he first drove the motor vehicle (on 25 June 2010) there was nothing

suspicious about the vehicle and that it had a valid temporary permit, Mr Dube could not gainsay this factual proposition. He could

only add that when he (Mr Dube) first saw the vehicle (on 15 July 2010) that the “temporary licence wasn’t there”.

[45] Mr Dube further added that he can merely speculate whether the VIN number of the vehicle may have been already removed at the time that Captain Motaung drove it and that he in reality does not know. Mr Dube stated that “I don’t have any question on that because it was a different time. If it was same time same date maybe I was supposed to ask Captain but it was totally different date, 25th June and 15th July there is a lot of thing that can happen in the car (sic).”

[46] In cross-examination of Captain Motaung, a version was posed to him that when he travelled to Pongola “…you are going through roadblocks and all this things”.

[47] Captain Motaung responded that he went with a proper vehicle and that he was indeed stopped at road blocks on the way,that the vehicle was checked and it was found that there was nothing wrong with the car. The temporary permit was also found to be in order.

[48] Captain Motaung added that when he was stopped at road blocks he was asked for his driver’s licence and was also asked as to the “registration”. He then advised the law enforcement officials that the vehicle has a temporary permit, “…

they went at the back of the window, they checked the permit and they told me to drive”.

[49] This evidence was extracted by SAPS. It certainly lends credence to Captain Motaung’s version that he never knew at the time that he borrowed the vehicle that it may have been stolen.

[50] This also applies to the incident during July 2010 when Mr Gumede requested Mr Dube whether he could park the vehicle in question at his (Captain Motaung’s) house. Captain Motaung did not have parking space available and arranged for the vehicle to be parked at the Police Station. The vehicle was then parked at the Police Station for a period of time. When quizzed about whether Captain Motaung did not notice that there was a false permit on the vehicle, he responded that he did not look at the permit at the time.

[51] Mr Gumede testified clearly that he received two temporary permits for the vehicle in question. The first one was for a period during June 2010 and not the permit appearing in SAPS’ bundle of documentation. He replaced the permit that was on the vehicle during June 2010 (when Captain Motaung used the vehicle) with a later one arranged by a certain Tshabulani.

[52] Mr Gumede could, however, not explain why the later permit as contained in the bundle of documentation was not filled in properly.

[53] The Commissioner failed to weigh all the relevant evidence presented in the current matter together with the probabilities. The Commissioner proceeded to draw inferences and make findings that cannot be said to be reasonable. The Commissioner even went so far as to suggest that Captain Motaung may have been an important ingredient in the possible concealment of stolen vehicles by Mr Gumede. He arrived at this speculative conclusion based on the fact that Captain Motaung and Mr Gumede were friends.

[54] Whilst it may be so that Captain Motaung drove a stolen vehicle to Pongola, the evidence informs that he was not aware of that fact at the time. SAPS did not prove at the arbitration hearing that Captain Motaung accepted a stolen vehicle unlawfully and intentionally from Mr Gumede.

[55] The award reached by the Commissioner was unreasonable since it was not one that a reasonable Arbitrator could reach on all the material that was before him. This rendered the outcome unreasonable.[2]

[56] The permit relied on by SAPS (and accepted by the Commissioner) was only issued on or about 12 July 2010, some 14 days after Captain Motaung returned from his trip to Pongola Surely it is not reasonable to expect a person driving a vehicle to inspect the vehicle’s VIN number if there is a valid temporary registration permit. The mere fact that a vehicle has a temporary registration permit that on the face of it appears to be in order certainly does not mean that the vehicle should be suspected of being stolen. SAPS’ main witness on the issue of the stolen vehicle (Mr Dube) acknowledged that it cannot be said that the VIN number was already erased on the vehicle at the time when Captain Gumede drove it, neither could he gainsay the averment that the vehicle indeed had a valid temporary permit at the time. He only inspected the vehicle after it was already returned to Mr Gumede by Captain Motaung. There is no evidence to support the charge that Captain Motaung had the intention to accept a stolen vehicle, neither that he knew that the vehicle was stolen when he borrowed and drove it.

[57] The first disciplinary charge reads that Captain Motaung drove a stolen vehicle “without registration numbers to Pongola”. He was never charged with an offence to the extent that he accepted and drove a vehicle to Pongola without a VIN number or that he was aware that the vehicle had its vehicle identification numbers erased (engine and chassis numbers). The evidence was that the vehicle was indeed issued with a valid temporary permit at the time. The result achieved by the Commissioner is based on material errors of fact and the resultant outcome is unreasonable.

[58] The dismissal of Captain Motaung was substantively unfair. There is no reason why the arbitration award should not be substituted with an appropriate order due to the time period that has lapsed since Captain Motaung’s dismissal and the fact that a sufficient

record was available to this Court.

[59] Although SAPS was seeking costs against the Applicant, the Applicant indicated at the hearing of the application that he is not specifically requesting a costs order in the event of being successful.

[60] I do not believe that this is a matter where costs should follow the result. SAPS had an award in its favour which it was entitled to defend. Since I am to order reinstatement, an order for costs may only serve to cloud the relationship between the parties going

forward.

[61] There is further no reason in law why the primary remedy of reinstatement should not be applicable in this matter.

ORDER

[66] In the circumstances, I make the following order:

1. The late filing of the Applicant’s application for review is condoned.

2. The award issued by Commissioner Kheditse Masege of the Safety and Security Sectoral Bargaining Council under case number PSSS323-12/13

is reviewed and set aside.

3. The award is substituted with an order that the dismissal of Captain Motaung was substantively unfair.

4. The Third Respondent (the South African Police Service) is ordered to reinstate Captain Motaung in the position that he occupied prior to his dismissal, retrospectively and without any loss of benefits, within 30 days from the date of this order.

5. There is no order as to costs.

_________________

Wilhelm Bekker

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANT:

Mr Malose Letoka of CHSM Incorporated Attorneys

FOR THE THIRD RESPONDENT: Adv Dlamini

Instructed by: The State Attorney

[1] No 66 of 1995.

[2] Herholdt v Nedbank Limited (2013) 34 ILJ 2795 (SCA).