South Africa Police Service v Maringa and Others (JR 1569/18) [2022] ZALCJHB 374 (6 December 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1569/18

In the matter between:

SOUTH AFRICAN POLICE SERVICE Applicant and THEMBA A MARINGA First Respondent COMMISSIONER T WILKES Second Respondent SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL Third Respondent

Date heard: 08 November 2022

Date delivered: 06 December 2022

JUDGMENT

BALOYI, AJ

Introduction

1. The applicant, South African Police Service approached this Court seeking review and set aside of the arbitration award issued by the second respondent. In terms of the award, the second respondent found the dismissal of the first respondent to be procedurally fair but substantively unfair. Consequently, the second respondent ordered the applicant to reinstate the first respondent.

2. It bears mention that on the date of the hearing of this application, the applicant approached this court with a view of seeking postponement of the matter on reasons that the matter was not ripe for hearing. Various inconsistent submissions were made on behalf of the applicant based on the understanding that there was no record filed. When the Court alerted the applicant’s Counsel of the presence of the record in the Court file, the applicant’s submissions took a different twist. That the record is insufficient became something to cling on for the applicant. As a result, the matter should be remitted to the Bargaining Council for fresh arbitration. The first respondent opposed the application(s).

3. After hearing these submissions, I made an order refusing the postponement and directed that the matter should proceed as scheduled. The order was duly accompanied by reasons which I do not see a need to repeat here.

Background

4. As pointed out above, the applicant is challenging the decision of the second respondent based on the grounds raised in the founding affidavit, specifically that the second respondent misconceived the nature of the inquiry. This, according to the applicant translates to the award being one that a reasonable decision-maker could not have reached.

5. The second respondent is amongst others criticized for:

5.1 Failure to make a determination on entrapment in terms of the applicable law.

5.2 Failure to appreciate that contravention of a statute that is meant to prevent corruption could not be sanctioned on the basis that it was a practice to contravene it, thus creating excuses for future contraventions.

5.3 Failure to consider the fact that the first respondent had not disputed awareness of a rule or standard, thus making it irrelevant that he was not warned of statutory corruption.

5.4 Gross irregularity in that he failed to interpret and apply the provisions of section 3(a)(i) of Prevention and Combating of Corrupt Activities Act 12 of 2004.

5.5 Failure to appreciate that if Mr Richard had initiated the bribe, he would not have called the Hawks to assist him by setting a trap.

6. The application is opposed, the first respondent contends that there is no basis for the review and set aside of the arbitration award in that:

6.1 The complainant, Mr Richard has admitted to having a history of bribing police officials and there was a pending criminal case against him in this respect.

6.2 Mr Richard had several engagements with Mr Ghoba (the complainant in the assault case against him) to have the case cancelled and made an undertaking to compensate him. This started long before the third respondent was appointed to investigate the case.

6.3 Mr Richard’s engagements went to the extent of involving the first respondent’s supervisor (Captain Snell), his own mother and Mr Ghoba’s mother.

6.4 The first respondent collected money from Mr Richard with the sole intention of handing same to Mr Ghoba who could not avail himself due to work commitments. It was handed to the first respondent openly at the charge office with a couple of police officers in close vicinity.

7. The pleadings in support and in opposition of the review application were prepared against the background that the third respondent was at all times material to the dispute a police detective constable. He was based at Reiger Park police station, reporting to Captain Snell. He was appointed to investigate a case of assault that was opened by Mr Ghoba against Mr Richard.

8. Prior to the opening of the criminal case, Mr Richard was at the police station premises with Mr Ghoba and had a discussion aimed at persuading Mr Ghoba not to open the case. He offered to compensate Mr Ghoba and they ultimately agreed that R3000.00 was an appropriate amount.

9. It appears that Mr Richard over-committed himself because he did not have the money offered as the payment was not forthcoming. As a result, Mr Ghoba became impatient and he went on to open the case. The case was allocated to the first respondent for investigation. On seeing that things were getting hot, Mr Richard escalated the engagements towards settlement by getting his mother to discuss the issue with Mr Ghoba’s mother. This was done with the hope of persuading Mr Ghoba not to go ahead with the criminal case.

10. The parents’ involvement in the matter did not bear any fruit as Mr Ghoba went to the police station and demanded Mr Richard’s arrest. This was also brought to the attention of Captain Snell who went to the extent of following the matter up with the first respondent.

11. The first respondent eventually went to Mr Richard’s home accompanied by Mr Ghoba with an intention of effecting an arrest. Once again, Mr Richard requested a side discussion with Mr Ghoba to revisit the issue of compensation. The discussion in question resulted in Mr Ghoba requesting the first respondent to delay the arrest. Furthermore, Mr Ghoba for reasons known to himself and Mr Richard requested the first respondent to facilitate the process of compensation.

12. This issue did not go without controversy as Mr Richard came up with a version that the R3 000.00 in question was solicited by the first respondent as a bribe to cause the case to disappear. The first respondent called him and placed the deadline for such payment or else he would arrest him. He felt threatened and engaged another police captain from a different police station who advised him to lure the first respondent into a trap that was set up with the purpose of catching the first respondent for corrupt activities.

13. Mr Richard was given the R3 000.00 in cash by the police officers who assisted in setting up a trap to pass it over to the first respondent. The notes were photocopied prior to being handed to Mr Richard. The first attempt to trap the first respondent at McDonald’s failed as the first respondent did not arrive on reasons that he was busy elsewhere.

14. The second meeting was diverted to the police station on first respondent’s suggestion. Mr Richard ultimately got the opportunity to hand the R3000.00 to the first respondent at the client services centre area. The police officers who assisted Mr Richard to set up a trap were on standby. After the handing of the money, the first respondent was immediately arrested on accusation of corrupt activities.

15. The first respondent was internally charged and dismissed from the police services. He referred the unfair dismissal dispute to the Bargaining Council and it came before the second respondent for arbitration.

16. During the arbitration proceedings it transpired that Mr Richard has passed away and the applicant applied for the admission of hearsay evidence in terms of Section 3 of the Law of Evidence Amendment Act 45 of 1988. The evidence contained in the disciplinary hearing transcript was ultimately admitted to record after the first respondent had

consented as such.

17. The evidence of Mr Ghoba as contained in the transcript of the disciplinary hearing was similarly admitted at the first respondent’s request without opposition. The reason behind the application in respect of Mr Ghoba’s evidence was that he received some threats about testifying at the arbitration process.

18. After having analysed the evidence, the second respondent came to the conclusion that Mr Richard’s evidence was unreliable and he found that the dismissal based on such evidence was substantively unfair.

19. Now before this Court, the applicant is seeking review and set aside of the arbitration award based on grounds already highlighted above. The review application is accompanied by a condonation application for its late filing. It was filed some four weeks out of time.

20. The reason for the delay is solely based on the applicant’s internal arrangements in handling litigation. There was a delay in obtaining approval to secure external legal services. The approval to appoint the state attorney only came after a month and a week after the issuing of the award.

21. The application for review was filed after the lapse of another month and a week after the appointment of the Office of the State Attorney. The reason behind the delay was that the State Attorney had a difficulty in finding Counsel during recess. The Counsel who ultimately availed himself did not attend to the matter immediately as he had other urgent matters to attend to. The condonation application is also opposed. The first respondent submitted that the reason for the delay is flimsy and that there are no prospects of success in the review application.

22. Mr Nhlapho for the applicant strongly argued for the remittal of the matter to the Bargaining Council for arbitration de novo in view of the insufficient record of the arbitration proceedings. The applicant’s prospects of success cannot be fully ventilated due to insufficient records. In any event, the second respondent has, so argued Mr Nhlapho, misconstrued the nature of the inquiry based on the evidence available. This certainly calls for the review and set aside of the arbitration award.

23. Mr Adoons, on behalf of the first respondent pointed out that there was no basis for the review of the arbitration award, given Mr Richard’s history of bribing the police officers to get away with his crimes. Furthermore, there is no compelling reason necessitating the granting of a condonation application.

Evaluation

24. There is no doubt that the applicant has to overcome a hurdle to enable its review application to be considered, that is, satisfying the Court that a good course exists for the granting of a condonation application. In Num v Council for Mineral Technology[1] the Labour Appeal Court demonstrated a consistent application of the test for condonation where the following was said:

“[10] ….There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospect of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused (cf Chetty v Law Society, Transvaal 1985 (2) 756 (A) at 765A-C; National Union of Mineworkers & Others v Western Holdings Gold Mine (1994) 15 ILJ 610 (LAC) AT 613E).”

25. The Labour Appeal Court further reiterated this in South Africa Post Office Ltd v CCMA and Others[2] in paragraph 18 where the following was said:

“[18] ………. With the factors of delay, go the prospects of success. Where it is evident that the party seeking

condonation has no prospects of succeeding in its principal claim or opposition, no purpose is served in granting condonation and the Court must in such circumstance refuse to grant condonation irrespective of the degree of delay or the explanation provided.

Where the prospects of success are reasonably good or even fair then, depending on the delay and the explanation, consideration must be given to the prejudice that the parties may suffer before the discretion can be exercised on whether to grant the indulgence

sought. The factor of prejudice plays a role only when the delay is substantial.”

26. The above authorities are indicative of the fact that the test for condonation is well settled. I find credence to the first respondent’s submission that the explanation for the delay is flimsy. It appears that the applicant has adopted a tendency of wanting compliance with the rules to take a back seat. The applicant decided to adopt a self-created long and winding process before instituting litigation whilst knowing well that there are time frames in terms of rules to be complied with.

27. The applicant seems to be looking only at its own interests and forgetting about those of the other litigant, the first respondent in this regard. The issue of prejudice certainly weighs against the interests of the first respondent.

28. The evidence admitted as hearsay is contained in the transcript of the disciplinary hearing. This, in my view, constitutes complete viva voce evidence. I find no reason not to align myself with the decision of Prinsloo J in Mashigo v Safety & Security Sector Bargaining Council and Others[3] where the Court had this to say at paragraph 28:

“The transcript of evidence, where witnesses were sworn in and testified under oath, where they adduced evidence and were cross-examined and where the parties’ cases were ventilated, constitutes evidence. The fact that the evidence is typed, instead of being orally presented, is of no moment as it remains evidence adduced by witnesses”.

29. In this instant case, similarly, the witnesses have testified under oath and were accordingly cross-examined as it clearly appears in the disciplinary hearing record. There is no doubt that the evidence of Mr Richard did not reveal anything but his tireless efforts to avoid an arrest in respect of Mr Ghoba’s case. He knew very well that he did not have money to meet the commitment he made to compensate Mr Ghoba.

30. There is no evidence tendered in the arbitration proceedings on whether he was eventually arrested or at least compensated Mr Ghoba. This demonstrates Mr Richard’s success in distracting the legal process in respect of a criminal case against him. I find the conclusions of the second respondent that Mr Richard was an unreliable witness to be not unreasonable. In addition to a poor explanation for the delay, I find that there is no prospect of success in the review application. Under these circumstances, the condonation application falls to be dismissed.

Costs

31. In view of the reinstatement order made by the second respondent, it follows that there is an employment relationship to be nurtured between the parties. Under these circumstances, a cost order will not be appropriate.

Order

32. In the premises, the following order is therefore made:

32.1 The condonation of the late filing of the review application is dismissed.

32.2 The review application is dismissed.

32.3 There is no order as to costs.

MM Baloyi

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Adv. SB Nhlapo

Instructed by

State Attorneys

For the Respondent:

Adv. M Adoons

Clive Nemushungwa Attorneys

[1] [1999] 3 BLLR 209 (LAC) at paragraph 10

[2] (2012) 1 BLLR 30 (LAC)

[3] (2022) 43 ILJ 2042 (LC)