SAPU obo Nhghondzweni v Safety and Security Sectoral Bargaining Council and Others (JR1307/2012) [2016] ZALCJHB 95 (8 March 2016)

Of interest to other judges

THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case no: JR 1307/2012

In the matter between:

SAPU obo BRIGADIER ZS NGHONDZWENI Applicant and THE SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL First Respondent MC VAN AARDE, N.O. Second Respondent THE SOUTH AFRICAN POLICE SERVICES Third Respondent

Heard: 17 February 2016

Delivered: 8 March 2016

Summary: (Review-dismissal-assault & rape – criminal standard of assessing evidence not applicable – practical implication of holistic evaluation in review test)

judgment

LAGRANGE J

Introduction

[1] This is a review of an arbitration award in which the applicant was found guilty of various charges relating to two incidents which allegedly took place during the early evening and night of Friday 5 February 2010. The main charges were assault and rape. The complainant was a female volunteer working in the unpaid capacity of a junior station commander at Sasolburg police Station. The applicant was the station commander at the time.

The Law

[2] Recent iterations of the review test based on reasonableness appear in the citations below. Thus in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae),[1] the SCA emphasized the main considerations in deciding if an arbitration award is one that a reasonable decision maker could not

reach:

“That test involves the reviewing court examining the merits of the case 'in the round' by determining whether, in the light of the issue raised by the dispute under arbitration, the outcome reached by the arbitrator was not one that could reasonably be reached on the evidence and other material properly before the arbitrator. On this approach the reasoning of the arbitrator assumes less importance than it does on the SCA test, where a flaw in the reasons results in the award being set aside. The reasons are still considered in order to see how the arbitrator

reached the result. That assists the court to determine whether that result can reasonably be reached by that route. If not, however, the court must still consider whether, apart from those reasons, the result is one a reasonable decision maker could reach in the light of the issues and the evidence.[2]

and

“[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. 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 particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome

unreasonable.”[3]

(emphasis added – footnotes omitted)

[3] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others[4], the LAC expanded on what the implications of the test are in assessing the arbitrator’s handling of evidence, laying emphasis on avoiding a piecemeal, or nitpicking approach:

“[18] In a review conducted under s 145(2)(a)(ii) of the LRA, the reviewing court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with one or some of the factors amounts to process related irregularity sufficient to set aside the award. This piecemeal approach of dealing with the arbitrator's award is improper as the reviewing court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make.

[19] To do it differently or to evaluate every factor individually and independently is to defeat the very requirement set out in s 138 of the LRA which requires the arbitrator to deal with the substantial merits of the dispute between the parties with the minimum of legal formalities and do so expeditiously and fairly. This is also confirmed in the decision of CUSA v Tao Ying Metal Industries.

[20] An application of the piecemeal approach would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his or her award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or consideration of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employ give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he or she was required to arbitrate? (This may in certain

cases only become clear after both parties have led their evidence.) (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? (v) Is the arbitrator's decision one that another decision maker could reasonably have arrived at based on the evidence?

[21] Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome (see Minister of Health & another NO v New Clicks SA (Pty) Ltd & others 2006 (2) SA 311 (CC)). But again, this is considered on the totality of the evidence not on a fragmented, piecemeal analysis. As soon as it is done in a piecemeal

fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and

reasonable — there is no room for conjecture and guesswork.”[5]

[4] Lastly, in Head of the Department of Education v Mofokeng and others[6], the LAC reaffirmed the test and added a further embellishment in the form of additional factors to be considered if the court is satisfied that there is a prima facie basis for finding that the result was unreasonable:

“[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (“the SCA”) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.

[31]The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions

of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.

[32]However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to “defects” as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order

(singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.

[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 inquiry. 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 inquiry, 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.[7]

Factual background

[5] In this matter, the complaint against the applicant was brought by a police volunteer, working in the position of a junior station

commander, who had been hoping to get permanent employment in the police force. Arising out of two separate incidents which took place in the afternoon and evening of 5 February 2010, criminal and disciplinary charges were brought against the applicant for assault and rape. At the time, the applicant was the station commander at Sasolburg Police Station where the complainant was working in the voluntary capacity mentioned.

[6] In the earlier part of that Friday afternoon the complainant had been asked to accompany the applicant and other senior officers. When they departed she was not entirely sure what event they were attending but assumed it was work-related. As things turned out, they ended up at a social venue where drinking and dancing was taking place. During the course of the time they were there the applicant allegedly made explicit sexual advances towards the complainant and at one stage slapped her on the side of the face to the extent that she sustained some bruising and her earring became detached. This incident formed the basis of an assault charge on which the applicant was found guilty. The applicant’s version was that he had been dancing with the complainant and had his arms around hugging her from behind. He claimed that they were speaking to another captain and that the complainant had lost concentration and was looking at somebody else. All he had done was pushed her head when she had been turning and looking at some other person. He wanted her to concentrate on the conversation with the captain. He denied slapping her, but said that he “underestimated the speed of my hand and I realised that I slapped her hard but it never made a problem”. He claims that her earring came off because his thumb hooked in it when this happened. Captain Lehola claims that the applicant only slapped the complainant slightly once causing her face to be a ‘bit reddish’. Another senior officer, who did not see the incident, confirmed that the complainant told her that the applicant had slapped her and that her earring had come undone, but testified that the applicant was unconcerned about the incident. She had testified that the couple had been very affectionate towards each other that evening. She claimed she had raised the inappropriateness of the applicant’s relationship with the complainant with the applicant before the incident, but the applicant did not mention this, nor was it put to the complainant that the complainant had allegedly reacted negatively towards her after she had raised the issue with the applicant.

[7] Later that evening on the way back, the complainant could only get a lift home from the applicant. She was anxious to get back to her child. The applicant insisted on stopping at the Police station and persuaded the complainant to enter his office on the pretext that he wanted her to type a letter for him. According to the complainant he then proceeded to rape her anally. Following the assault he threatened to kill her if she spoke about the incident. Afterwards she left the police station crying and waited for him to take her home. Captain Ramasebe, who had appointed the complainant in the voluntary position, witnessed the complainant coming down the stairs from the second floor of the police station and going to stand near the applicant’s car. He could see that she was crying silently. The applicant also testified that the complainant was crying when he got to the car, but his explanation for her crying was that he had spurned her as described below.

[8] The applicant claimed that the purpose of going to the station was to collect magazines dealing with pregnancy, which he had been keeping there for his girlfriend and that he wanted the complainant to assist him carrying them. His girlfriend phoned him when they were in the office and they argued. When he put the phone down the complainant shocked him by saying that she was not going home but was going with him to his house. He rebuffed her advance and rebuked her saying that she knew he was living with his girlfriend. He was abrupt with her and she became upset and left the room crying. He only found four magazines.

[9] The complainant said she was confused and shocked and did not report the event at the time to anyone though it is apparent that her distress had been noticed by at least one other policeman at the station. Another reason she gave for not reporting the incident was that, other senior officers had been present when she had been slapped and they had not intervened, so she lacked confidence in reporting the rape incident. Moreover, if she reported it to the charge office at the police station, it was the very police station where the applicant was the station commander at the time. The applicant allegedly threatened that he would kill her if she revealed to anyone what had taken place and she was warned not to place his career in jeopardy. The applicant’s explanation for what made her upset at the police station was that he was not willing to come home with her and told her that he had another girlfriend.

[10] During the night the complainant said the applicant repeatedly called her on her phone but she switched it off because she did not want to speak to him. He then started to leave messages on her phone to the effect that he apologised ‘wholeheartedly’. He said he would come and see her at 10H00 the following day, but he never did. She also sent him messages discouraging him from coming to her house because she was worried that her boyfriend might do something rash if he encountered him there, and she was concerned about her own position at the Police station if something happened between them.

[11] The following day she started to relate the events of the previous evening to her married boyfriend, who also happened to be a Police constable, but she had not even gone into much detail about the incident of the assault at the social venue because he ’went mad’ and she decided not to tell him about the more serious incident at the Police station. Her former boyfriend testified that when he went to see her she was in a state and he noticed bruising on the left side of her neck and near her eye. Later that evening the applicant did arrive at the complainant’s mother’s house, where she stayed, saying he wanted to talk to her and he insisted that she should get into the car so they could go somewhere to talk. They drove around and during the course of this interaction he pulled out a firearm and warned her that if she told anyone he would kill her. She had expected that he would express remorse for what he had done and explain his behaviour the previous evening. The applicant claimed that they had had consensual sex on Saturday evening, during which she had complained of pain in her anus, which is why the following day he asked her on the phone if she had piles. In the course of his testimony, the applicant did volunteer that he had persisted with intercourse even though she had complained of the pain. The complainant denied having any sexual relations with him except on the previous night when she was raped.

[12] The complainant said the applicant phoned her during the course of Sunday morning to say that somebody had told the cluster commander, Brigadier Motswaelede, about the incident at the social venue and that she had been seen crying at the Police station and unable to walk. He had told her to make up an explanation to explain away the incidents.

[13] It was only when her boyfriend found her crying at home early on Sunday afternoon that she confided in him in broad terms that the applicant had ‘forced himself on her’. He then took her to his wife so she could talk to her ‘as a woman’ about what had happened. Though the boyfriend testified that he told his wife about his affair with the complainant that Sunday, it would seem that his wife was unaware of their relationship at the time. When she testified with obvious reluctance at the arbitration her evidence revealed her sense of betrayal by them. Nonetheless when she testified, barring one detail about whether the complainant told her that she was raped on a table in the office, her brief account of what the complainant told her that Sunday was broadly consistent with the complainant’s version.

[14] When he returned and asked her what she wanted to do she said she wanted to lay charges but could not lay them at the Police station. While she was talking with her boyfriend the complainant phoned and her boyfriend attempted to record the conversation in which she complained that she was bleeding from the sexual assault, but the complainant dropped the call when he heard her boyfriend’s cell phone ringing in the background.

[15] Early on Sunday evening two officials from the Internal Complaints Directorate (‘ICD’) came to see her and took her to hospital where she was examined for injuries relating to the sexual assault. According to the complainant’s boyfriend was he who phoned the ICD and advised them of the incident after his wife had reported to him what the complainant had related to her. The examining doctor testified that the complainant’s injuries were consistent with her version of events, though he conceded they might also be consistent with constipation. A criminal case was opened against the applicant which was still pending at the time of the arbitration.

[16] A year later, the applicant had to undergo two weeks of counselling which she attributed to the trauma she had suffered the previous year. She was also prescribed antidepressants. It was suggested to her under cross-examination that the real reason she had gone for counselling because her relationship with her boyfriend was suffering after she gave birth to the twins in December 2010. The applicant did make it clear in her evidence in chief that after the incident she did not want to have anything to do with men even though her relationship with her boyfriend had been good.

[17] She denied ever having had a consensual sexual relationship with the applicant or that she had sexual intercourse with the applicant on any occasion other than the one where he raped her. She was very distressed by the rape and even more so by the particular physical character of the rape, which caused her pain. On the applicant’s version, she had recently become his “new lover” and there was no reason for him to threaten her in any way because he was besotted with her.

[18] The complainant agreed that there were things that she had omitted from her written statements made soon after the events but that at the time she was not thinking clearly because of her psychological state. She agreed that she had been asked to check the statement before signing it but that something recorded in the statement had been expressed the way the statement taker had seen fit. She claimed that she drew the discrepancies to their attention but was told they did not matter. Thus, for example, in her statement about the assault at the social venue, she said that the applicant “clapped” her, whereas she testified that he had struck her three times on the face.

The arbitrator’s reasoning

[19] The arbitrator gave a relatively detailed summary of the evidence, noting that a conclusive picture of the events was difficult to arrive at but what was needed was to determine the matter by deciding which version was more plausible having regard to the test for resolving factual disputes.

[20] In relation to the charge of assault, the arbitrator considered conflicting and supporting evidence for the incident and noted that the applicant had admitted slapping the applicant and that, news of the incident reached the Cluster Commander. He concluded that the applicant was guilty of this charge.

[21] As in the case of the disciplinary enquiry, the arbitrator went further and found him also guilty of the associated alternative charge of acting in an improper, disgraceful manner in front of subordinates by hugging and caressing the complainant.

[22] On the charge of rape/sexual assault he considered whether the complainant had behaved after the event in a manner consistent with someone who had been raped. He was sceptical of her account. He also considered whether the applicant’s explanation for the complainant being in a state of tears at the Police station might be another plausible explanation, without making it clear which version he preferred. He then seemed to accept the applicant’s ‘admission’ that he had had consensual sex with the complainant once before the fateful weekend, and that they had also done so on Saturday 6 February 2010. The arbitrator then noted the applicant’s own evidence that the complainant had asked him to stop because she was experiencing pain in her anus but that he carried on despite realising she did not want to continue. This, the arbitrator found amounted to sexual assault

even on the applicant’s own version and he was therefore guilty of rape and the alternative charge of sexual assault.

Grounds of review

[23] The aplicant claimed that the arbitrator committed gross irregularities in that he was misdirected in a number of respects, that he did not apply his mind and took account of irrelevant considerations and ignored relevant ones such that his award was not a reasonable one. The particular factual averments relied on in support of this claim are set out in summary below.

[24] In relation to the finding of assault, the arbitrator failed to make a finding whether there was an intention to assault the complainant. He also ignored material contradictions between the complainant and witnesses such as Captain Lehola and General Nhlapo. He also misdirected himself by finding the applicant guilty also of the alternative charge of improper conduct.

[25] In relation to the sexual assault charges, the applicant claims that the arbitrator failed to attach any weight to the contradictions in the evidence between the complainant’s version and the testimony of her boyfriend and his wife. He also expressed reservations about the complainant’s evidence then found that the applicant’s own admission about his alleged sexual conduct on 6 February 2010 was sufficient to find him guilty of sexual assault because of the lack of consent involved when he continued to have intercourse with the complainant despite her evident unhappiness. In so doing he misdirected himself by ignoring the fact that the applicant was not charged with committing a sexual assault on the night of 06 February but on the previous night. Accordingly, the arbitrator effectively found the applicant guilty of the offence which did not relate to the incident for which he had been charged.

Assessment

[26] If one has regard to the evidence of the assault, the only other direct eyewitness to that incident did not say that the applicant had simply pushed the complainant’s face as he had claimed but confirmed that he did strike on the face with his hand, even though she suggested it was not a serious blow. The applicant himself admitted he had not realised the force he had used and more than one witness observed the redness on the left side of her face. It is true that the examining doctor did not note any bruising to the complainant’s face, but there was nothing to suggest that the doctor was asked to examine her for that injury. Rather it would appear that the focus of the doctor’s examination was on whether there was evidence of the sexual assault. It is not necessary to determine whether the arbitrator’s conclusion, irrespective of how he arrived at it, was the most probable one but simply whether there was sufficient evidence to support such an interpretation.

[27] In my view there was more than ample evidence to support an inference that indeed the applicant did strike the complainant hard enough to leave signs of bruising and to dislodge and or alternatively, break her earring. The only evidence that the applicant did not intend to assault the complainant is that of the applicant himself. Even on his own version, he had pushed her head to one side which involved the use of force. There was never any suggestion that he had acted with her consent. It is not implausible

that, on the evidence he had intended to apply physical force to her and did so in the form of a slap, even if one accepts the somewhat implausible explanation to the effect that he did not know his own strength. For the purposes of these proceedings that would seem to be more than sufficient for establishing that the violent act was not unintended.

[28] In so far as the arbitrator also found that the applicant was guilty of the alternative charge, he may have erred in the sense that strictly speaking he should have found the applicant guilty of one charge or the other. However, if one looks at the charge of improper conduct, it did not really rest on the same facts which underlay the assault but was more about the improper fraternisation by the applicant with someone in the complainant’s position. Strictly speaking, it was not necessary to frame this as an alternative charge and it was capable of standing as a charge in its own right.

[29] In relation to the arbitrator’s finding of sexual assault, I agree that the arbitrator misdirected himself by relying on the applicant’s ‘admission’ of what transpired during the alleged sexual encounter with the complainant on 6 February 2010. His enquiry should have been focused on what transpired at the previous evening at the Police station. That finding accordingly must be set aside.

[30] In the circumstances, the question arises whether it would be appropriate to remit that back for reconsideration by another arbitrator or whether the Court should determine the matter. It is clear that already three years had elapsed by the time the arbitration was heard and another three years has passed since then. It is likely that all witnesses’ memories would have deteriorated further if it was remitted back for fresh consideration. It would also defeat the objects of the LRA if the final outcome was further deferred.

[31] If one has regard to the evidence that the complainant was sexually assaulted in the Police station on Friday night on 5 February 2010, it is true that alternative inferences can be drawn from the fact that she was seen crying after leaving the applicant’s office given that there may have been different explanations why she was upset. However, just because she did not report the matter immediately to the appropriate authorities does not mean that her version was implausible. She was concerned about her future employment prospects and she had been in the presence of other senior policeman when the previous incident occurred earlier in the evening and no-one had spoken out about it. Quite apart from any overt threats the applicant might have made, she did not feel comfortable reporting the incident at the very Police station where he was the station commander. She did not bottle up her unhappiness when she found an outlet for it even if that was her boyfriend’s wife.

[32] She also subjected herself to what would have been for anyone and undignified medical examination. If she had wanted to lay a false claim of rape there would have been no need to allege that it took the particular form it did. If it was reasonable to infer that the applicant struck the complainant on the face when others were present earlier that evening, it is not implausible to believe that in the privacy of his office he might not have used force again. The very limited minor discrepancies between the detail of how the alleged rape was committed in relation to the evidence of her boyfriend’s wife, were not so material as to detract from the more numerous corroborating aspects of her account of what the complainant told her and what the complainant testified to.

[33] Considered in its totality, I am satisfied that it is at least one plausible interpretation of the evidence, if not the only one, to conclude that she was raped at the Police station on the evening of 5 February 2010.

[34] To the extent that the sanction to be re-evaluated it seems to be incontrovertible that such conduct is incompatible with the applicant’s employment as a policeman and is even more serious given the nature of his rank and position and the relationship of a mentor that he should have maintained with the applicant. In the upshot, although the arbitrator was guilty of misdirecting himself in relation to this charge, there is no reason to set aside his findings on a re-evaluation of the evidence.

Order

[35] The review application is dismissed.

[36] No order is made as to costs.

[37]

_______________________

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCE

APPEARANCES

APPLICANT:

A Gerber instructed by Thapelo Kharametsane

THIRD RESPONDENT: B S Mene instructed by the State Attorney, Bloemfontein

[1] (2013) 34 ILJ 2795 (SCA)

[2] At 2801-2, para [12]

[3] At 2806.

[4] (2014) 35 ILJ 943 (LAC)

[5] At 949-950.

[6] [2015] 1 BLLR 50 (LAC)

[7] At 59-60.