Popcru obo Vearey v National Commissioner of the South African Police Service and Others (C708/2021) [2024] ZALCCT 10; [2024] 5 BLLR 523 (LC); (2024) 45 ILJ 1068 (LC) (20 February 2024)

FLYNOTES: LABOUR – Disciplinary hearing – Charges – Arbitrator found dismissal substantively fair – Mistakes of law in award – Problematic concept of how charges are framed – Arbitrator’s misconception of nature of enquiry – Applicant did not get fair trial of issues at arbitration – Does not make any findings as to whether applicant was guilty of charge laid against him – If so, whether sanction of dismissal was fair – Requires determination anew – Dispute remitted for re-hearing.

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

case no: C708/2021

In the matter between:

POPCRU obo JEREMY ALAN VEAREY

Applicant

and

THE NATIONAL COMMISSIONER OF

THE SOUTH AFRICAN POLICE SERVICE

First Respondent

SAFETY AND SECUIRTY SECTORAL

BARGAINING COUNCIL

Second Respondent

IMTHIAZ SIRKHOT N.O.

Third Respondent

Heard: 8 November 2023

Delivered: 20 February 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 21 February 2024 is deemed to be the date of delivery of this judgment).

JUDGMENT

RABKIN-NAICKER J

[1] This is an opposed application to review an Arbitration award under case number PSSS 104-21/22. Condonation applications from both sides are before me and I grant these on the usual principles. In terms of the Award, the fourth respondent (the Arbitrator) found the dismissal of the Applicant to have been substantively fair. The applicant submits inter alia that the Arbitrated misconstrued the nature of the enquiry before him and made material mistakes of law and fact.

[2] The charge that applicant faced is recorded in a ‘Notice of Expeditious process in terms of Regulation 9(2)(b) of the South African Police Service Disciplinary Regulations 2016 as follows:

“Disciplinary Regulations, 2016

“1. You are hereby notified that the Expeditious Process in terms of regulation 9 of the South African Police Service Disciplinary Regulations, 2016, will be considered on the grounds that you allegedly committed serious misconduct, as provided for in regulation 5(4)(x) of the South African Police Service Disciplinary Regulations, 2016, in that , on or about the 16th February 2021 at a location or place unknown to the South African Police Service (SAPS), as the employer, you have allegedly brought the name of the employer into disrepute, by posting images and messages, and causing same to be circulated, through Social Media, which was intended to degrade the leadership of the SAPS and/or disrespect the authority of the National Commissioner of the SAPS.

2. In terms of the Regulation 9(2)(b) of the South African Police Service Discipline Regulations, 2016, you are hereby summoned to appear in person at the Expeditious Process which is to be held on the 23rd day of April 2021 at 09:00 at Airwing Offices – No. 35 Squadron: Erica Drive, Belhar: Cape Town (Western Cape) at 09.00.

3. You may be represented by a fellow employee or a union representative at the Expeditious Process.

4. The following documents/statements will be relied upon and are attached for your perusal:

- The information was handed to you on the 14th April 2021.

Issued at Cape Town on this 22nd day of April 2021.”

[3] In terms of the SAPS National Instruction 5 of 2017 entitled ‘Media Communication in the South African Police’, the following Clause was relevant to the dispute before the Arbitrator:

“(f) Use of a private social media profile

(i) Employees who use social media must respect the Code of Conduct of the Service and consider it as the guiding principle. The personal use of social media implies that the employees are using social media for personal interest, which has nothing to do with their duties in the Service.

(ii) Employees should always think carefully before they post, and when they are in doubt, they should not post.

Employees must remember that even if they act or speak in their personal capacity, their position as employees of the Service may be known to anyone in the potential audience and may be misunderstood or misrepresented as an official position.

(iii) Employees are held accountable and can be held legally responsible for all comments that they post on their personal social media

platforms. Employees may not engage in online communication activities which could bring the Service into disrepute. Communication of this nature must be considered as a serious misconduct.

Employees may not post photographs, video material or any details of operational incidents.

(iv) Employees may not use social media platforms as a forum to raise any internal issues or grievances. The Service has a number of formal channels for raising any grievances, issues or internal complaints.”

[4] In terms of the Disciplinary Regulations of 2016, the expeditious process is initiated in the following manner:

“(1) A supervisor who is satisfied that the alleged misconduct is of a serious nature and or falls with the ambit of regulation 5(4) he or she must ensure that the expeditious process is initiated, and a full substantiated report is submitted to the National or a person designated by him or her, what person may not hold a rank lower than that of Brigadier and assumes the power of the employer for purposes of this regulation.”

[5] The Award and transcript of the proceedings reflect that after an investigation by Major General Jan Petrus Scheepers (who was appointed by the National Commissioner), Eastern Cape Provincial Commissioner Ntshinga was designated by the National Commissioner to initiate the Expeditious process. She gave evidence to the arbitration, identifying the charge against the Applicant as referred to in paragraph 2 above. She confirmed to Advocate Mooki S.C., representing SAPS at the arbitration that she found the applicant guilty on that charge:

“MR MOOKI: And then on page

16, still the heading: Finding, paragraph 48, you wrote:

“In respect of …

Is that , what, Charge 1 or ….?

MS NTSHINGA: Yes, it was charge 1. It is the only charge I used.”

[6] The original charge sheet prepared by Provincial Commissioner Ntshinga was before the Arbitrator, and contained the following charges:

“Charge One (1)

Contravened Regulation 5(3)(b)(ii) of the South African Police Service Discipline Regulations, 2016, in that you performed an act or failed to perform an act with the intention to undermine the policy as contained in National Instruction 5 of 2017, in that contrary to paragraph 14(3) of the aforementioned National Instruction, on or about the period between the 7th of December 2020 and the 25th of February 2021 used your private Facebook profile to publish remarks and/or comments without taking reasonable care and which created or could reasonably be construed as creating the impression that the Service is victimising an individual employee, to wit, Lieutenant General Peter Jacobs. (emphasis mine)

First alternative to charge One (1):

Contravened Regulation 5(3)(b)(ii) of the South African Police Service Discipline Regulations, 2016, in that you contrary to paragraph 13(5) of the National Instruction 5 of 2017, you performed an act or failed to perform an act with the intention to undermine the provisions of the aforementioned National Instruction, in that you on/or about the period between the 7th of December 2020 and the 25th of February 2021 using your private Facebook profile, you published remarks and/or comments without indicating that you are not the official spokesperson of the Service and that the comments and/or remarks is not the viewpoint of the Service or any other member. (emphasis mine)

Second Alternative to charge One (1):

Contravened Regulation 5(3)(b)(ii) of the South African Police Service Discipline Regulations, 2016, in that you contrary to paragraph 19(10)(iv) of National Instruction 5 of 2017, performed an act or failed to perform an act with the intention to undermine the aforementioned National Instruction, in that you on/or about the period between the 7th of December 2020 and the 25th of February 2021 used your private Facebook profile published comments and/or remarks with regard to internal issues of the Service, without using

the formal channels created to raise any internal issues of the Service. (emphasis mine)

Charge Two (2):

Contravened Regulation 5(3)(u) of the South African Police Service Discipline Regulations, 2016, in that you on/or about the period between the 7th of December 2020 and 25th of February 2021 and on your personal Facebook profile, you acted contrary to the prescribed Code of Conduct of the South African Police Service, which is applicable to you, by publishing comments and/or remarks such as “MOER HULLE” translated to “FUCK THEM”, in relation to a current internal issue involving Lieutenant General Peter Jacobs, which attracted media attention or could reasonably be construed as a comment and/or remark in relation to the aforementioned internal issue, thereby failing to act respectfully and upholding the Code of Conduct.

First alternative charge to Charge Two (2):

Contravened Regulation 5(3)(v) of the South African Police Service Discipline Regulations, 2016, in that on/or about the period between the 7th of December 2020 and 25th of February 2021 and on your personal Facebook profile, you published the words “MOER HULLE” translated to “FUCK THEM” inciting another employee/s to unlawful conduct or conduct in conflict with accepted procedure or could reasonably be construed as inciting another employee/s to unlawful conduct or conduct in conflict with accepted procedure. (emphasis mine)

Second alternative charge to charge Two (2):

Contravened Regulation 5(3)(t) of the South African Police Service Discipline Regulations, 2016, in that on/or about the period between the 7th of December 2020 and 25th February 2021 and on your personal Facebook profile, you published the words “MOER HULLE” translated to “FUCK THEM” in relation to a current internal issue involving Lieutenant General Peter Jacobs, which attracted media attention, your comments and/or remarks clearly directed at or an attack on or could reasonably construed as being directed at or an act on the National Commissioner and/or National Management of the Service, thereby conducting yourself in an improper, disgraceful and unacceptable manner.

Charge Three (3)

By contravening Regulation 5(4)(x) of the South African Police Service Discipline Regulations, 2016, read with charge 1 and its alternative charges, charge 2 and its alternative charges, as indicated above, the mentioned acts constitute misconduct which detrimentally affected the image of the Service and/or brought the Service into disrepute.”

[7] In his analysis of the evidence and argument before him, the Arbitrator made the following comments regarding the charge against the applicant:

“62. The charge against the Applicant was that on or about 16 February 2021, the Applicant had allegedly brought the name of the Respondent into disrepute by posting images and messages and causing same to be circulated through social media, which was intended to degrade the leadership of the Respondent and/or disrespect the authority of the National Commissioner.

63. The submission of the Applicant in the matter is that Major General Scheepers as the investigating officer should have confined his investigation to the screenshots of the three 16 February 2021 Facebook posts that he received from Brigadier Vish Naidoo who is the duly appointed National Spokesman for the Respondent and as these Facebook screenshots were the alleged misconduct referred to in the charge sheet and not the Facebook posts of the Applicant dated the 7;12;23 December 2020 and 4;16;17 and 24 January 2021.

64. The Code of Good Practice: Dismissal requires that the employer should notify the employee of the allegations using a form and

language that the employee can reasonably understand. The employee has to be given adequate information so that the employee will be able to identify the incident and ascertain the misconduct that he is alleged to have committed.

65. A disciplinary enquiry is not a criminal trial; the way charges are described is less important than an overall assessment of whether there is evidence of misconduct. The Applicant was presented with evidence of alleged misconduct and allowed sufficient opportunity to prepare a defence. The Respondent cannot be restricted to the time period as mentioned in the charge sheet.

66. The Respondent sought to introduce an ENCA interview that was conducted with the Applicant on 3 June 2021. This interview was

conducted after the Applicant was dismissed and was not introduced as evidence at the expeditious process The applicant objected to the introduction of this evidence on the basis that this evidence was not introduced at the expeditious process and that the Respondent introduced this evidence at the stage of cross-examination of the Applicant. I had dismissed the objection raised by the Applicant. The Applicant had submitted that I had to assess whether the dismissal was unfair on the basis of evidence that was led at the expeditious process. This is the “reasonable employer test”, that is, whether the employer was reasonable in dismissing the employee at the disciplinary enquiry, or as in this case at the expeditious process stage. This approach has been firmly rejected by our courts. A consequence of this approach is that an employer is entitled to lead evidence not led at the disciplinary enquiry relating to the charges for which the employee was dismissed.”

[8] The above paragraphs of the award contain some mistakes of law which need to be examined. The concept that the way charges are framed including the time period they relate to, is of no import in a disciplinary enquiry, is problematic. The correct legal position was set out In Samancor Chrome Ltd (Eastern Chrome Mines) v Commission for Conciliation, Mediation & Arbitration & others[1] in which the LAC clarified that:

“ An employer should notify the employee of any allegation of misconduct ‘using a form and language that the employee can reasonably understand’. While it is immaterial what label is given to the misconduct alleged, notice should be given in a manner which provides a reasonable degree of clarity so as to enable the employee to answer to the allegation raised. The arbitration hearing is one de novo with there being no bar on relevant additional evidence being adduced at arbitration. This is so since the determination of the fairness of a dismissal at arbitration ‘is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator’. It is however not open to an employer to alter or amend the reason for dismissal or to rely on an entirely different reason for such dismissal at arbitration; and there is no merit in the appellant’s submission that the employee’s misconduct ‘must be viewed

through the prism of the contextualised version during the course of the domestic hearing and subsequent arbitration proceedings’.

To the extent that this suggests that it is permissible for the reason for dismissal to morph from that advanced by the employer at the time of dismissal to a different reason advanced at arbitration, this is simply not the case.”

[9] To the above, I would add the trite point that the charge/s against an employee are a reference point for any adjudicator of a labour dispute. As the LAC stated in Clarence v National Commissioner of the SA Police Service[2]:

“A member is entitled to know what the charge is which he faces. SAPS must inform him of the offence. It may be permissible for SAPS to frame a charge of misconduct in terms of regulation 18(3) by citing crimes in the alternative or to specify the act. In this matter alternative charges were dropped at the commencement of the disciplinary hearing.”

[10] As is clear from the recording of the charges originally laid against the Applicant, in this matter too, alternative charges were dropped before the commencement of the Expedited process.

[11] A second mistake of law reflected in the Award above, related to the Arbitrator’s justification for allowing evidence to be introduced of statements by the applicant after the dismissal, at the cross-examination stage. The Arbitrator did not consider this in relation to their admissibility, or take into account that the evidence had not be given in chief by the employer. He based his decision on the “reasonable employer test” which test he failed to comprehend. It is trite that the test which has been rejected by our Courts involved a deferential approach to the employer in respect of determining the fairness of the sanction of dismissal.

[12] Mistakes of law, as gross irregularities of the latent kind, do not of themselves render an Award reviewable. These stand to be considered in the context of the effect they have on the arbitration proceedings in question. As the LAC in Mofokeng[3] held:

“[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide

a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’ (Emphasis added.)

[13] From a comparison of the actual charge for which the applicant was found guilty and dismissed, and the charges which were originally drawn up against him, it is evident that over and above the time period referred to in them, a more substantive difference is to be found. That is contained in the alternative ‘Charge to a Charge 2’ which alleges that his posts were “inciting another employee/s to unlawful conduct or conduct in conflict with accepted procedure or could reasonably be construed as inciting another employee/s to unlawful conduct or conduct in conflict with accepted procedure.”

[14] The applicant was not charged with incitement of others to commit unlawful acts. However, the Award and transcript of the proceedings reflect that the Respondent’s evidence was heavily weighted to supporting the proposition that he had misconducted himself in this way. The actual charge against the applicant for which he was found guilty was clearly framed. The enquiry before the Arbitrator was to decide in a de novo hearing whether the applicant was guilty of the charge as framed, and if so, whether the sanction of dismissal was fair in all the facts and circumstances of the case. The nature of the enquiry, properly determined, allows an adjudicator to duly admit and weigh the evidence before him. A misconstruction of the enquiry is not compatible with performing that function as this Award shows.

[15] In casu, the Arbitrator admits and treats the evidence before him in order determine the issue of whether the Applicant incited his readership to perform unlawful acts:

“88. The posting of the Applicant on his Facebook page on 25 February 2021 showed a photo of Lieutenant General Jacobs linked to a media report that Lieutenant General Jacobs was heading to court to stop disciplinary action. The comment of the Applicant was “Moer Hulle, Fuck them”. I accept the version of the Applicant that his Facebook page did not have the words “Rate this translation” and that he immediately corrected it on his Facebook page. The Applicant conceded that “Moer Hulle” means go for them or beat them. This post was an incitement to violence against three senior officers, National Commissioner Sitole, Lieutenant Geneal Ledwaba who chaired the expeditious process in which the Applicant represented Major General Jacobs and Lieutenant General Vuma who was the investigating officer. The words “Moer Hulle” can have different meanings depending on the context in which it is used it is normally used in a sporting context where players are urged on by their supporters. This was not a sporting fixture and it will not be expected that the Applicant as a Major General would use these words. The Applicant could have used any other words and failed to explain why these words were used in this context. It is rather telling that the Applicant embolden the words “Moer Hulle” in capital letters. The Applicant was making a point using capital letters. The Applicant wanted his followers to pay attention to his words. It was irresponsible for the Applicant as a senior manager of management to

use these words. The Applicant identified himself in his posts as Major General Vearey. Anyone accessing his Facebook posts would think that the Applicant is speaking on behalf of the Respondent or could come to the conclusion that the Applicant was rising up against National Commissioner Sitole. These posts by the Applicant had the potential to inspire others, both within and outside the Respondent to rise up and resist the authority of the National Commissioner and those in the leadership and this would collapse discipline…..”

[16] In his Award, the Arbitrator further dealt with responses to the applicant’s posts by his readership, to press home the theme of incitement to unlawful conduct, concluding after reference to some of these that:

“The Applicant was encouraging a mini insurrection against the leadership of the Respondent.”

[17] I take judicial notice that the arbitration proceedings took place during and in the wake of the July 2021 ‘insurrection’. This may have contributed to a certain extent to the hyperbole in the above statement. But for the purposes of this judgment, the issue of the Arbitrator’s misconception of the nature of the enquiry (it’s root to be found in veering from the path of the actual charge for which the applicant was found guilty), is the basis of the order I must make.

[18] This judgment finds that the applicant did not get a fair trial of the issues at arbitration. What it does not do is make any findings as to whether the applicant was guilty of the charge laid against him, and if so whether the sanction of dismissal was fair. This needs to be determined anew before the second respondent. In all the circumstances, I make the following order:

1. The Award under case number PSSS 104-21/22 is reviewed and set aside.

2. The dispute is remitted for re-hearing under the auspices of the Second Respondent before an arbitrator other than Third Respondent.

3. There is no order as to costs.

____________________

HRabkin-Naicker

Judge of the Labour Court of South Africa.

Appearances:

For the Applicant: Marais Muller Henricks Inc

For the Third Respondent: Mooki S.C. instructed by the State Attorney

[1] (2020) 41 ILJ 2129 (LAC)

[2] (2011) 32 ILJ 2927 (LAC)

[3] Head of Department of Education v Mofokeng & others (2015) 36 ILJ 2802 (LAC)