South African Police Service North West Provincial Commissioner v Moahlodi and Others (JR1543/17) [2024] ZALCJHB 218 (23 May 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1543/17

In the matter between:

SOUTH AFRICAN POLICE SERVICE - NORTH

WEST PROVINCIAL COMMISSIONER Applicant

and

ADAM MAFIKOLO MOAHLODI AND

ANOTHER

First Respondent

MASHOODA PATEL N.O.

Second Respondent

THE SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL

Third Respondent

Heard: 12 January 2024

Delivered: The judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date for hand-down is deemed to be 23 May 2024.

JUDGMENT

NXUMALO, AJ

Introduction

[1] The applicant has brought an application to review and set aside the arbitration award, issued by the second respondent. The arbitration award is dated 3 June 2017.

[2] In the arbitration award, the second respondent found that the applicant's dismissal of the first respondents, Adam Moahlodi (Moahlodi) and Sising Mokaleng (Mokaleng), was substantively unfair but procedurally fair. The second respondent also ordered the retrospective reinstatement of the first respondents with effect from 21 June 2016.

[3] The first respondents oppose the review application.

[4] The matter appears to have a protracted history, with the relevant events dating back to the year 2012. There has also been non-adherence to timelines and processes. However, prior to the review application coming before me, there were various interlocutory matters which have been dealt with by different Judges of this Court. These included inter alia:- an application by the first respondents in relation to archiving the review application; an application by the first respondents to enforce the arbitration award; an application by the applicant to stay the enforcement of the arbitration award; an application by the applicant to retrieve the review application; and a rescission application by the applicant against the enforcement of the arbitration award.

[5] Ultimately, the rescission and retrieval applications came before Moshoana J, on 11 May 2022, who ordered that:

5.1 the earlier order of this Court per Van Niekerk J (i.e. that the arbitration award be and is made an order of Court) be rescinded and set aside; and

5.2 the matter be retrieved from the archives in order for the review application to be determined.

[6] I am tasked with determining the review application. The Court file, when the review application ultimately came to me, was not orderly and the papers were all over the place. The Court file and the papers were also not in accordance with this Court's Practice Manual[1]. The pleadings, notices and record were also not in separate indices as required by paragraph 11.2.8 of the Practice Manual - which provides that the application must be divided into three sections: the first section containing the pleadings and affidavits, the second section the relevant notices (including all Rule 7A notices) and the third section the record of the proceedings.

[7] The applicant, as dominus litis, having launched the review application, had to ensure that the Court file was presentable, in order and the papers in accordance with the Practice Manual. The transcribed record of the arbitration proceedings, filed by the applicant, also appears to have excluded and to be missing certain information. I address this further below.

Objection to the supplementary answering affidavit

[8] The applicant takes issue with and seeks for the exclusion of the first respondents' supplementary answering affidavit.

[9] The applicant launched the review application on 26 July 2017. On 29 August 2017, the first respondents filed their answering affidavit. This answering affidavit by the first respondents was, however, premature, in that the applicant had yet to file its Rule 7A(6) and 7A(8) processes/notices (i.e. the arbitration record and whether the applicant would be supplementing or standing by their founding affidavit).

[10] The arbitration record, a portion of the transcribed arbitration proceedings and the applicant's supplementary founding affidavit appear to have been filed by the applicant between November 2017 and 1 July 2022.

[11] Pursuant to this, the first respondents filed a supplementary answering affidavit on 22 July 2022. The applicant filed its replying affidavit to the first respondents' supplementary affidavit on 29 March 2023.

[12] In their supplementary answering affidavit, the first respondents explained that their earlier answering affidavit was premature. Having considered the record, they found it necessary to file a supplementary answering affidavit. The first respondents also submitted that no prejudice could be caused to the applicant given that the applicant will have an opportunity to respond thereto, i.e. reply through a replying affidavit.

[13] In view of the above, I do not find basis to exclude the supplementary answering affidavit from the pleadings. The applicant is rather mischievous for seeking to exclude the supplementary answering affidavit, where it has not complied with the Rules of this Court[2] and also filed its replying affidavit late.

Failure to file complete record

[14] Rule 7A(6) of the Rules of this Court provides that an applicant in a review application must furnish the Registrar and each of the other parties with a copy of the record or portions of the record, as the case may be. The applicant must make available copies of such portions of the record as may be necessary for the purposes of the review.

[15] The transcript of the arbitration proceedings that I have been provided with, is visibly missing the evidence of the first respondents (but for the evidence of Mr Mokaleng) and their witnesses. The supplementary founding affidavit of the applicant records that the

transcribed record of the arbitration proceedings consisted of three lever arch files. However, the transcribed record of the arbitration

proceedings which the applicant filed and has made available, consisted of approximately only 248 pages - which does not amount to even one lever arch file.[3] There was no explanation proffered in this Court for the missing portions of the transcribed record. The record is not missing in the sense that the mechanical recordings do not exist - it is missing in the sense that the applicant appears to have elected to only file portions of the transcribed record that suited it.

[16] The applicant is permitted to exercise a discretion when compiling the review record, as it should file only those portions that are necessary for the review. However, notwithstanding this discretion, the record does not have to be compiled in a manner that only benefits the applicant. It needs to be compiled so that this Court can decide whether, based upon all evidence that was before the arbitrator, the arbitrator committed reviewable irregularities.

[17] The applicant has had ample opportunity to fix the record and ensure that the record of proceedings before this Court consisted of all the necessary portions, especially the transcripts. Ordinarily, this Court would be inclined to either remit, remove or dismiss the review application on the basis that the applicant has not filed the complete record and within the specified time period, or where it appears that no steps have been taken to correct the incomplete record.[4]

[18] I am, however, mindful of the fact that this matter has dragged on and has a protracted history - with relevant events which span to the year 2012, i.e. close to 12 years ago. I am also alive to the fact that this Court, in the last of the interlocutory matters, per Moshoana J, ordered that the matter be determined. It is, however, unclear whether Moshoana J was made aware of the incomplete record.

[19] Having said the above, the grounds of review raised by the applicant are procedural and ex facie there does not appear to be a dispute on the facts which informed the decision of the second respondent. Accordingly, I hold the view that I am in a position to make a determination on the issues before me. I am also of the view that it is in the interests of justice to proceed to determine the review application on the grounds of review raised by the applicant.[5]

Summary of the facts and/or background

First respondents’ version

[20] The first respondents were employed by the applicant as Warrant Officers and were attached to the detective branch at the Krugersdorp South African Police Station.

[21] The first respondents in carrying out their duties, rely mainly on informers – some of which are former members and/or reservists with the South African Police.

[22] The first respondents had received information from an informer about stolen televisions that were kept at a particular house and destined for Mozambique. The informer's name was a Mr Olifant.

[23] The first respondents met with Mr Olifant and he took them to the house. Upon arrival at the house, they asked for the owner of the premises and introduced themselves. The owner and/or person responsible for the house was identified as Mr Vqveid Andrade Junior (Mr Junior).

[24] The first respondents searched the house after being granted permission to do so. During the search, they found a television set which the owner of the premises, Mr Junior, could not provide proof of purchase and which had scratched serial numbers. Given that Mr Junior was in possession of the supposed stolen property, he was placed under arrest and briefly left with Mr Olifant in the house - whilst the first respondents carried the television to the car. Thereafter, Mr Olifant came with Mr Junior to the car and got into the vehicle.

[25] Whilst the first respondents were driving from Mr Junior's house, they were stopped by other police officers and were requested to open the boot of the vehicle. The first respondents alleged that they advised the other police officers that the television was in fact confiscated. This notwithstanding, they were arrested on allegations of corruption and detained.

Applicant’s version

[26] During December 2012, the applicant received information about alleged corrupt activities that had allegedly been undertaken by the first respondents.

[27] On or about 23 December 2012, the applicant organised a trap/operation in terms of section 252A of the Criminal Procedure Act[6]. The applicant engaged informants, Mr Junior and Mr Nordino Abilio Mavie (Mr Mavie), to assist them with the trap/operation.

[28] From the applicant, Captain George Leseunye, Captain Andrew Willard and Warrant Officer Kutumela had met on 23 December 2012 for the purposes of executing the trap/operation. They also requested a Mr Matabela to meet with them.

[29] In terms of the trap, Mr Junior would pretend to be the buyer of a stolen television set. It was anticipated that the first respondents would go to Mr Junior's house, where the television set was located, and make demands for a bribe. Mr Junior was provided with R470 in marked bank notes to execute the trap/operation. It is alleged by the applicant that the plan was that if the first respondents wanted money from Mr Junior, he must inform them that he only had R470 in cash and that the rest of his money was at the bank.

[30] When they arrived at Mr Junior's house, some of the officers were to remain in the house. This was before the first respondents had arrived. Some of the officers left and observed from afar.

[31] Warrant Officer Kutumela saw the first respondents and Mr Olifant getting out of the vehicle. They knocked at the house and introduced themselves. Mr Olifant identified the television set in the house and Mr Moahlodi, one of the first respondents, asked Mr Junior if he had the papers for the television set. Mr Olifant informed Mr Junior that the television set was stolen.

[32] Warrant Officer Kutumela heard Mr Moahlodi, one of the first respondents, ask Mr Junior whether he had the money for bail, in particular, if he had R10 000. Mr Mokaleng, however, said the bail amount would be R15 000 or he would remain in custody for the whole festive season.

[33] Warrant Officer Kutumela thereafter heard Mr Junior saying he only had R7 000 in his bank account but had R470 in his pocket. Mr Junior was thereafter arrested. The first respondents took Mr Junior and were headed to the ATM to withdraw R7 000.

[34] Warrant Officer Kutumela alerted the other officers and thereafter the first respondents were arrested. When the first respondents were stopped by the police officers, they were searched. However, Captain Willard did not find the trap money of R470 in the possession of the first respondents but in the possession of Mr Olifant.

Disciplinary and arbitration proceedings

[35] On or about July 2013, the first respondents were called upon to answer the following disciplinary charges:

‘In terms of Section 40 of the South African Police Service Act, 1995 (Act no 68 of 1995), read with the South African Police Services

Regulations, 2006, you are hereby charged with misconduct in that you allegedly Contravened Regulation 20 (z) of the said Regulations, at or near B 808 Phuduhudu street Vaal Reefs Orkney, on approximately the 23rd day of December 2012 during the day in that you:

Committed any common law or statutory offence, Corruption Act 12/2024, in that you told Mr. Vaveld Andrade Junior that he was in possession of a stolen television and told him that he will have to pay R10 000-00 (ten thousand rand) to get bail, but you told him if he can make a plan to pay you an amount of R7 000-00 (seven thousand rand) he will not be arrested for the stolen television where after he told you that he only R470-00 (four hundred and seventy rand) in cash, which you took from him, and that he must give you R5000-00 (five thousand rand) which he needed to go and withdraw at the bank, where after you took possession of the television and took him to withdraw the said amount. (CAS27/02/2013)’ [sic].

[36] The first respondents denied the allegations and disciplinary charges against them. On 18 October 2013, the first respondents were found guilty and a sanction of dismissal was imposed.

[37] On or about 23 October 2013, the first respondents appealed the finding and sanction. The appeal by the first respondents meant that they would "be deemed have been suspended with immediate effect [with] full remuneration pending the outcomes of the appeal". The appeal was finalised more than two years later, on or about 15 March 2016, when the finding of guilt and the sanction of dismissal were confirmed. The first respondents thereafter challenged their dismissals, by referring an unfair dismissal dispute to the third respondent. On 3 June 2017, the second respondent found that the dismissals of the first respondents were procedurally fair but substantively unfair.

Legal test on review

[38] The test on review, which is well known and established, as set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others[7] is whether the decision reached by the arbitrator is one that a reasonable decision maker could not reach.

[39] In Head of the Department of Education v Mofokeng and others[8], the Labour Appeal Court (LAC) clarified the legal position with respect to the setting aside of arbitration awards. The LAC held

that:

‘[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LRA, confining review to 'defects' as defined in s 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 enquiry 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 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...’

[40] In Herholdt v Nedbank Ltd[9], the Supreme Court of Appeal held the following:

‘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.’

[41] Consequently, the review test is stringent and a conservative test of reasonableness. The LAC in Makuleni v Standard Bank of South Africa Ltd and others[10] held as follows:

‘The court asked to review a decision of a commissioner must not yield to the seductive power of a lucid argument that the result could be different... At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable...’

The grounds of review

[42] The applicant raises three grounds of review. They are summarised and addressed below.

[43] Prior to addressing the grounds of review, it is worth mentioning that it seems to be common cause that the first respondents were not convicted in the criminal courts in relation to these allegations which led to their dismissals.

[44] Furthermore, and prior to instituting this review application, the applicant was, twice, informed by its head office and/or legal office that there was no basis upon which to review the arbitration award and that the first respondents should be reinstated. This was seemingly not followed nor heeded by the applicant.

The first ground of review

[45] The applicant submits that the second respondent committed a procedural irregularity by permitting its witness, Mr Mavie, to testify on behalf of the first respondents in the arbitration proceedings.

[46] The applicant had obtained statements made by Mr Junior and Mr Mavie during the investigation of the alleged offence committed by the first respondents. The applicant goes further to allege that Mr Mavie was subpoenaed to testify on behalf of the applicant during the criminal proceedings and had intended at all material times to also use the evidence of Mr Mavie during the arbitration proceedings. Of importance, the applicant submits that Mr Mavie was subpoenaed by the criminal court. Mr Mavie, however, proceeded to testify on behalf of the first respondents during the arbitration proceedings.

[47] The applicant contends that the second respondent ought to have raised an issue with the testimony of Mr Mavie because Mr Mavie was regarded as the applicant's witness. In its supplementary affidavit, the applicant further states that in allowing Mr Mavie to testify on behalf of the first respondents, the second respondent ignored a lawful subpoena.

[48] None of the arguments proffered by the applicant on this ground of review are with merit. The applicant seeks to imply that given that Mr Mavie was allegedly subpoenaed in the criminal court, such subpoena applied mutatis mutandis in the unfair dismissal arbitration proceedings before the second respondent. Such a notion is manifestly incorrect.

[49] This Court has also not been provided with or seen a copy of such subpoena for the criminal proceedings. Even if a subpoena was issued in the criminal proceedings, which this Court has not seen, such a subpoena would have applied only in those proceedings under which the subpoena would have been issued. A subpoena is specific to the particular proceedings as it compels the subpoenaed person to provide that relevant tribunal with information or to appear before that relevant tribunal on a specific date, time and location. Consequently, the applicant cannot seek to rely on a subpoena allegedly issued during criminal proceedings or any other

proceedings in arbitration proceedings pending before the third respondent.

[50] In the applicant's supplementary founding affidavit, the applicant now avers that a subpoena was issued by the second respondent and alleges that it is attached to the affidavit. There is, however, no such subpoena attached to the supplementary founding affidavit nor is there such a subpoena in the record of the arbitration proceedings.

[51] Even if there was a subpoena, which I have not seen, the applicant makes no allegation as to how the subpoena was served on Mr Mavie particularly given that the applicant's initial version was that Mr Mavie was untraceable. Captain Leseunye, for the applicant, had first testified that Mr Mavie was untraceable; however, he had later admitted during cross-examination that he had located Mr Mavie and had met with him whereafter he refused to testify for the applicant.

[52] Importantly and in any event, Mr Mavie duly appeared before the second respondent, gave his testimony and was cross-examined by the applicant. Accordingly, even if I accept that Mr Mavie was subpoenaed to appear before the second respondent, I must find that he somewhat complied with such a subpoena. Mr Mavie appeared and the applicant had recourse to test his evidence through cross-examination – which it did. There is no dispute by the applicant that it in fact cross-examined Mr Mavie.

[53] In casu, I find that the second respondent did not commit a reviewable irregularity by permitting Mr Mavie to testify on behalf of the first respondents and being cross-examined by the applicant. Accordingly, this ground of review must fail.

The second ground of review

[54] The applicant contends that the second respondent ought to have held a trial within a trial in circumstances where Mr Mavie had alleged that he was coerced into signing the written statement.

[55] The applicant states that a trial within a trial was necessary to determine the veracity of the claim made by Mr Mavie that he was assaulted. The applicant alleges that the second respondent committed a procedural irregularity in hearing the evidence of Mr Mavie without having resorted to a trial within a trial.

[56] The applicant, however, does not aver that it raised the issue of holding a trial within a trial before the second respondent. It appears that this issue is being raised now before this Court as a procedural irregularity.

[57] The applicant had every opportunity to test the version, evidence and credibility of Mr Mavie during cross-examination. The applicant does not deny that it had this opportunity and in fact, it did exercise its right to cross-examine Mr Mavie. In my view, cross-examination was sufficient to test the veracity of Mr Mavie's claim and as such, it was not necessary to direct the proceedings to a trial within a trial.

[58] It is also trite that unfair dismissal disputes before tribunals such as the bargaining council and the like, must be resolved expeditiously and without resorting to technical processes.

[59] In the circumstances, I find that the second respondent did not commit a procedural irregularity. Accordingly, this ground of review must also fail.

Third ground of review

[60] The applicant's third ground of review appears to be two-fold:

60.1 In the first instance, the applicant alleges that the second respondent failed to apply her mind to the facts before her. In particular, the applicant alleges that the second respondent committed an irregularity when she made a negative credibility finding against the applicant's witnesses and thus accepted that the applicant's versions were improbable. This allegation is made out in the supplementary founding affidavit.

60.2 In the second instance, the applicant alleges that the second respondent failed to apply her mind to the facts before her on the basis that the second respondent should not have allowed the applicant to close its case where there was a subpoena against Mr Mavie and should have done more in the circumstances. This allegation is made out in the supplementary founding affidavit.

[61] The applicant avers that the second respondent refused to weigh the evidence of Captain Leseunye and Warrant Officer Kutumela against the evidence of other witnesses and that the second respondent simply disregarded the evidence and testimony of its witnesses.

[62] The second respondent was required to determine whether the first respondents were involved in a scheme to solicit money from foreign nationals. Given that the versions proffered by the applicant's witnesses and the second respondents were "mutually destructive", the second respondent had "to make a finding on the credibility of the witnesses as well as the probable versions."

[63] In Stellenbosch Farmers' Winery Group Ltd and another v Martell Et Cie and others[11], the Supreme Court of Appeal expressed the following:

‘To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability and improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court's credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’

[64] This position has been consistently applied by this Court, more so in relation to the duty of an arbitrator when the arbitrator is confronted by two irreconcilable versions. The arbitrator must therefore attempt to assess the credibility of the witnesses and consider the probability or improbability of each party's version. I accept that an assessment of evidence on the basis of credibility only without regard to the underlying probabilities would not be appropriate.[12]

[65] The applicant appears not to dispute the factual findings of the second respondent insofar as the inconsistency of its witnesses is concerned. The applicant takes issue with the weight attached by the second respondent to the evidence of the inconsistent witnesses and the remainder of its evidence.

[66] The second respondent appears to have understood the task before her and she examined the credibility of the parties. I am not inclined to interfere with the second respondent's assessment of the credibility of the witnesses, as she was in the best position to make these findings. This notwithstanding, it is useful to assess whether the second respondent's findings are at odds with the evidence on the record insofar as the probabilities are concerned.[13]

[67] The version presented by the applicant was tainted by Captain Leseunye's dishonesty on the failure to secure Mr Junior and Mr Mavie as witnesses. The applicant does not dispute that (i) Captain Leseunye first testified that these witnesses were untraceable; and (ii) he later admitted/conceded during cross-examination that he had located Mr Mavie and had met with him, whereafter he refused to testify for the applicant.

[68] It cannot be denied that this alone tainted the credibility of Captain Leseunye and the reliability of his evidence. In turn, it was capable of tainting the probabilities of the version presented by the applicant.

[69] The applicant alleged that the second respondent should have drawn inferences from the other available evidence which supported its version. The difficulty with this submission is that the applicant does not allege what other inferences could have been drawn from the evidence it presented before the second respondent which would result in its version being more probable.

[70] Captain Andrew Willard who testified for the applicant admitted that no money was found on the first respondents following the trap that had been set up - but that the money (i.e. trap money of R470) was found on Mr Olifant, the informant. He could also not dispute that the first respondents did not see the money that was found on Mr Olifant. Based on these facts, there was no reason for the second respondent not to accept that the first respondents did not receive the trap money of R470. Accordingly, there is no evidence before the second respondent to support the allegation that the first respondents took money from Mr Junior.

[71] There is also no evidence to support the allegation in the charge that the first respondents requested Mr Junior to give them R5 000. In fact, nowhere in the evidence of any of the applicant's witnesses was it alleged that the first respondents requested Mr Junior to pay them R5 000. The charge for which the first respondents were dismissed reads as follows (sic):

‘In terms of section 40 of the South African Police Service Act, 1995 (Act No 68 of 1995), read with the South African Police Service

Discipline Regulations, 2006, you are hereby charged with misconduct in that you allegedly Contravened Regulation 20(z) of the said Regulations, at or near B 808 Phuduhudu street Vaal Reefs Orkney, on approximately the 23rd day of December 2012 during the day in that you:

Committed any common law statutory offence, namely Corruption Act 12/20044, in that you told Mr Vqveld Andrade Junior that he was in possession of a stolen television and told him that he will have to pay R10 000-00 (ten thousand rand) to get bail, but you told him if he can make a plan to pay an amount of R7 000-00 (seven thousand rand) he will not be arrested for the stolen television where after he told you that he only got R470-00 (four hundred and seventy rand) in cash, which you took from him, and that he must give you R5 000-00 (five thousand rand) which he needed to go and withdraw at the bank, where after you took possession of the television and took him to withdraw the said amount. (CAS 27/02/2013 Vierfontein Corruption Act 12/2004)’

(sic)

[72] Warrant Officer Kutumela's evidence only goes as far as stating that (from what he heard when he was listening) the first respondents left Mr Junior's house to go to an ATM to withdraw the R7 000 that Mr Junior had said he had in his bank. Warrant Officer Kutumela testified that whilst he was in Mr Junior's house, he heard Mr Olifant informing Mr Junior that the television was stolen and that he should produce the papers for it. He further alleged that, he heard, Mr Moahlodi (one of the first respondents) state that the bail would be R10 000 and Mr Mokaleng (the other first respondent) state that the bail was R15 000. Mr Junior responded and stated that he did not have any money but could give them R470 and he could go withdraw R7 000 from the bank. Thereafter, the first respondents left with Mr Junior to take him to the bank.

[73] Finally, the evidence of Mr Elidio Macamo was not relevant to the charges for which the first respondents were dismissed. There is accordingly no inference that could be drawn from his evidence.

[74] The second respondent went further to consider that Mr Junior was not called to corroborate the version. Indeed, Warrant Officer Kutumela's version was not corroborated by Mr Junior nor was there any other evidence to support his version. It was simply Warrant Officer Kutumela's word that had to be considered by the second respondent. The applicant made no attempt to at least admit the statement of Mr Junior as hearsay evidence in order to corroborate Warrant Officer Kutumela's version.

[75] In my view, the fact that the second respondent did not make a pertinent finding on the credibility of the other versions presented by the applicant does not in itself demonstrate that she failed to apply her mind. The evidence before the second respondent simply did not support the drawing of any positive inference to find that, on a balance of probabilities, the first respondents committed the act of misconduct for which they were dismissed.

[76] The applicant further avers that the second respondent should not have permitted the applicant to close its case and should have investigated the circumstances surrounding the failure to call Mr Mavie.

[77] There was no basis upon which the second respondent, could prohibit the applicant from closing its case. In any event, Warrant Officer Osipile, who represented the applicant during the arbitration proceedings, voluntarily closed the applicant's case. There was no protest by Warrant Officer Osipile against closing the applicant's case.

[78] I have addressed above this Court's assessment and considerations around Mr Mavie. There was nothing preventing the applicant from cross-examining Mr Mavie when he made himself available to testify and to elicit a version favourable to the applicant alternatively to negatively discredit his testimony. Mr Mavie duly appeared before the second respondent, gave his testimony and was in fact cross-examined by the applicant.

[79] The applicant asserts that the second respondent should have allowed Mr Mavie to be turned into a hostile witness. On a reading of the record available before me, the arbitration award and the pleadings, nowhere is reference made to an application to declare a witness hostile. The applicant also does not allege that it made such an application. There was nothing stopping the applicant from making a request to declare Mr Mavie a hostile witness, however unusual it may have been to make the request at that stage. The applicant did nothing more than simply close its case.

[80] In any event, the second respondent could not have been expected to do more. There was no need for the second respondent to further investigate the circumstances surrounding the applicant's failure to call Mr Mavie as a witness – when Mr Mavie appeared and was cross-examined by the applicant. The reasons were also plainly before the second respondent:

80.1 Captain Leseunye, for the applicant, had first testified that Mr Mavie was untraceable; however, he later conceded during cross-examination that he had located Mr Mavie and had met with him whereafter he refused to testify for the applicant.

80.2 Captain Leseunye admitted during cross-examination that Mr Mavie never testified in the criminal proceedings nor did he testify at the disciplinary hearing.

[81] The applicant was required to prove its case on a balance of probabilities. The probabilities of its version were negatively impacted by (i) the dishonesty of its witness; (ii) the failure to corroborate an important fact of what the first respondents actually said to Mr Junior on 23 December 2012; (iii) the fact that no monies were found on the first respondents on 23 December 2012; and (iv) the fact that none of the applicant's witness actually testified that the first respondents requested Mr Mavie to pay an amount of R5 000 on 23 December 2012.

[82] Ultimately, the applicant failed to prove on a balance of probabilities that the first respondents committed the alleged acts of misconduct. Accordingly, I hold the view that on the facts before her, there is no reason to suggest that the second respondent did not understand the nature of the enquiry before her. The second respondent clearly applied her mind to the facts and evidence before her.

[83] In the circumstances, this ground of review must also fail.

Whether reinstatement was appropriate or practical?

[84] Where a dismissal is unfair, the circumstances in which an arbitrator may order compensation instead of reinstatement are set out in section 193(2) of the Labour Relations Act[14] (LRA), which provides that:

‘(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless –

(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee;

(d) the dismissal is unfair only because the employer did not follow a fair procedure.’

[85] The second respondent ordered the applicant to reinstate the first respondents with no loss of service and on terms and conditions no less favourable than those which prevailed at the time of their dismissal. The reinstatement was to operate with retrospective effect from 21 June 2016.

[86] Whilst there is a prayer for an order that the dismissal was fair in the notice of motion, no case is made out in either the founding or the supplementary affidavits of the applicant on why reinstatement would not be an appropriate remedy, should the grounds of review fail. The applicant, however, makes submissions on reinstatement in its heads of argument and during the hearing of the review application.

[87] In its heads of argument, the applicant recites various case law applicable to reinstatement orders and submits that absent any mutual trust, it should not be compelled to employ the first respondents whom they do not trust in a position that imports a close relationship.

[88] The applicant cannot seek to make out its case on reinstatement in its heads of argument, in circumstances where such case was not pleaded in its founding papers. It is trite that a ground of review cannot be formulated for the first time in heads of argument – the applicant was required to set out all the material facts on which it seeks to rely in challenging the reasonableness of the second respondent’s award. This notwithstanding, there is a basis upon which this Court may consider the submissions on the appropriateness of reinstatement.

[89] The Constitutional Court in Booi v Amathole District Municipality and others[15] held that a Court should consider the intolerability of the working relationship before it makes an order of reinstatement.[16] The Constitutional Court expressed that the bar for intolerability is a high one, i.e. as follows:

‘[40] It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term “intolerable” implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And, my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability.

[41] Thus, “intolerability” in the working relationship should not be confused with mere “incompatibility” between the parties. “Incompatibility” might trigger a different kind of enquiry with different remedies. For instance, an incapacity enquiry may be held to establish whether the incompatibility goes as far as rendering the employee incapable of fulfilling their duties. This is entirely distinct from “intolerable” relations.

[42] I hasten to add that the evidentiary burden to establish intolerability is heightened where the dismissed employee has been exonerated of all charges. In this context, what ought to ring true are the words of the Labour Court in Amalgamated Pharmaceuticals that, in a constitutional democracy in which the right to fair labour practices is entrenched, “[t]o punish ... [individuals] … with unemployment, even if this is accompanied with some compensation, without finding them guilty of any wrongdoing is grossly unfair”. Similarly, we ought to be guided by what this Court said in Billiton: “[i]f [the conduct] did not justify dismissal… it [is] difficult to understand why, at the same time, it could nevertheless

provide a ground to prevent reinstatement”. It should take more to meet the high threshold of intolerability than for the employer to simply reproduce, verbatim, the same evidence which has been rejected as insufficient to justify dismissal.’

[90] I am guided by the principles outlined above by the Constitutional Court.

[91] It is apparent that the allegations of misconduct for which the first respondents were dismissed are serious and if the first respondents were found guilty, would sufficiently establish a breakdown in the trust relationship. However, and importantly, the first respondents' dismissals were overturned and found to have been substantively unfair by the second respondent. In addition, the first respondents were not convicted in the criminal Courts in relation to these allegations which had led to their dismissal. Furthermore, the applicant's own head office and/or legal office had, at least twice, considered the matter and arbitration award - and indicated to the applicant that there was no basis to review the arbitration award and that the first respondents should be reinstated.

[92] Mr Gumbi, for the applicant, submitted, from the bar, that Mr Moahlodi has recently since been arrested and/or imprisoned for something else (unrelated to this matter) and therefore his reinstatement was and/or would be impossible. In respect of Mr Mokaleng, Mr Gumbi submitted, also from the bar, that his reinstatement was and/or would be impossible because he was reaching retirement age.

[93] There is, however, no substantiation of these submissions nor pleaded facts as to what Mr Moahlodi has allegedly recently been arrested and/or imprisoned for and how long he has been/was imprisoned for that would make his reinstatement impracticable. In any event, the applicant is not without any remedy – this Court has held that for reinstatement to take place, an employee must actually tender their services and the employer must agree to them coming back. The claim for backpay would also arise upon the restoration of the contract of employment.[17] Accordingly, if Mr Moahlodi has indeed recently been arrested and/or imprisoned (for something else, unrelated to this matter) and does not tender his services, the applicant would not be without a remedy and can deal with same in accordance with its regulations or policies and procedures.

[94] In Samuel v Old Mutual Bank and others[18] (Samuel), the Labour Court dealt with the question of whether reinstatement was proper when the employee had reached the retirement age and stated the following:

‘[14] The first respondent in addition argued that the relief sought by the applicant, namely reinstatement, was not competent on the basis that by the time the review application was heard, the applicant had passed the retirement age. The essence of the first respondent’s argument was that, as the applicant had passed the retirement age, she was in effect seeking compensation. The effect of reinstatement was that the applicant would receive compensation in excess of the statutory limit on compensation provided for in the LRA, ie 12 months' salary.

[15] The difficulty with the respondent’s argument is simply this:

15.1 At the time of her dismissal, the applicant had not reached retirement age, nor had the applicant reached retirement age at the time the arbitration was concluded.

15.2 The issue therefore relating to whether or not the applicant was entitled to reinstatement was alive at the time the award was handed down. If the second respondent had ordered reinstatement, the applicant could have recommenced her employment.

15.3 This Court is asked to review the second respondent’s award and in particular the second respondent’s decision not to order reinstatement. If the second respondent’s decision not to award reinstatement is reviewable it needs to be substituted with the correct decision.

15.4 If at the time the decision of the second respondent is reviewed and set aside and substituted with reinstatement, the applicant has passed the normal retirement age, it should not, and I believe does not, render the effect of the reinstatement order incompetent.

15.5 To find that such an order in such circumstances is incompetent would simply serve to prejudice the rights of employees who are dismissed shortly before their retirement or in circumstances where a review application is delayed beyond the employee’s retirement age. This is not an outcome contemplated by the LRA and most certainly such an outcome would be unfair.

15.5 It is an inherent risk faced by employers in labour litigation where a final decision is deferred whilst the litigation is ongoing. It is for this reason that the act specifically provides for an exception to the obligation of the court to reinstate if the provisions of section 193(2) are met.

15.6 When a dismissal is found to be unfair the only circumstances in terms of which the court or an arbitrator may order compensation as opposed to reinstatement are those set out in section 193(2).’

[95] I align myself with the findings in Samuel above. I appreciate that Mr Mokaleng may be reaching his retirement age. This, however, is no fault of his own nor is it a bar to reinstatement. At the time of his dismissal as well as at the time of the arbitration award, Mr Mokaleng had not reached and/or was not reaching retirement age. To find that a reinstatement order is incompetent in circumstances where a review application has failed would unduly prejudice Mr Mokaleng.

[96] Accordingly, I see no reason why I should interfere with the award of reinstatement as ordered by the second respondent. These submissions/allegations by Mr Gumbi, for the applicant, have also not been pleaded, substantiated nor were they before the second respondent.

[97] In the result, the following order is made:

Order

1. The application for review is dismissed.

2. There is no order on costs.

M Nxumalo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate M Gumbi

Instructed by:

State Attorney

For the First Respondent: David Mtsweni of Mphahlele MA Attorneys

[1] Practice Manual of the Labour Court of South Africa, effective 2 April 2013.

[2] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court.

[3] As appears on pages 53 to 299 of the pleadings bundle which contains pleadings. The applicant also included the transcript in the pleadings bundle. The applicant has separately also filed another bundle, which runs from pages 1 to 436 containing documents that appear to have been used at the arbitration - the index to this bundle is labelled as "Bargaining Council Record". There is, however, no additional transcript in this other bundle – it runs from pages 1 to 436 in accordance with its index.

[4] See: Fountas v Brolaz Projects (Pty) Ltd and others [2006] ZALAC 12; [2016] JOL 35703 (LAC) at paras 31 – 33; Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and others [2015] ZACC 39; (2016) 37 ILJ 549 (CC) at para 40; Balasana v Motor Bargaining Council and others [2010] ZALC 124; (2011) 32 ILJ 297 (LC) at para 27.

[5] See: Palluci Home Depot (Pty) Ltd v Herskowitz and others [2015] 5 BLLR 484 (LAC) para 58.

[6] Act 51 of 1977, as amended.

[7] [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) at para 110.

[8] [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at paras 32 - 33. Also see Makuleni v Standard Bank of South Africa Ltd and others [2023] 4 BLLR 283 (LAC) at paras 2 to 4.

[9] [2013] ZASCA 97; [2013] 11 BLLR 1074 (SCA) at para 25.

[10] [2023] ZALAC 4; [2023] 4 BLLR 283 (LAC) at para 4.

[11] [2002] ZASCA 98; 2003 (1) SA 11 (SCA) at para 5.

[12] See: Transnet Ltd v Gouws and others [2016] JOL 35673 (LC) para 13.

[13] See: NUMSA obo Mathonsi v SCAW Metals (Pty) Ltd and Others (2020) 41 ILJ 254 (LC) para 52.

[14] Act 66 of 1995, as amended.

[15] [2021] ZACC 36; (2022) 43 ILJ 91 (CC).

[16] Booi supra at para 36.

[17] See: Goliath and others v African Meter Reading (Pty) Ltd [2022] ZALCJHB 330; [2022] JOL 56431 (LC).

[18] [2018] ZALCD 16 (2019) 40 ILJ 205 (LC) at paras 14 – 15.