South African Police Service v Bevan N.O. and Others (JR 802/2019) [2022] ZALCJHB 124 (25 May 2022)

THE LABOUR COUR OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 802/2019

In the matter between:

SOUTH AFRICAN POLICE SERVICE

APPLICANT

and

ANNELIE BEVAN N.O.

FIRST RESPONDENT

MATEBESI G.A

SECOND RESPONDENT

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL

THIRD RESPONDENT

Heard: 24 May 2022

Delivered: 25 May 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 25 May 2022.)

JUDGMENT

VAN NIEKERK, J

[1] This is an application to review and set aside an arbitration award issued by the first respondent (the arbitrator) on 14 March 2019. In her award, the arbitrator held that the second respondent (the employee) had been unfairly dismissed and ordered his reinstatement with retrospective effect.

[2] The award under review record the material facts. The employee was engaged as a constable in January 2011. He was dismissed after a disciplinary hearing into charges of attempted fraud and prejudicing the discipline, administration and efficiency of the applicant, in particular, by participating in corrupt activities for attempting to defraud a Mr. Dirk Coetzee.

[3] At the arbitration hearing, the only witness to testify on behalf of the applicant at the arbitration hearing was a Capt. Morema, who was the investigating officer into the disappearance of a Mr. Coetzee and fraudulent transactions that took place in his bank account. Morema testified that he interviewed a Ms. Sebothe, who was employed at the First National Bank, Wolmaransstad, and she told him that she had been approached by four men, known to her, who were in possession of Coetzee’s account number and identity number. According to Sebothe, the men requested her to create a link for them to withdraw money from the account, which she refused to do. In the course of his investigation, Morema viewed video footage that confirmed that the four individuals, including the applicant, had met with Sebothe at the bank’s premises. Morema also interviewed the employee who stated that he had participated in this activity as he had financial problems. Morema expressed the view that the employee was guilty of attempted fraud as he had been present in the bank on the day indicated by Sebothe, a fact that had been confirmed by the video footage.

[4] After Morema’s testimony, the applicant’s representative brought an application to have a statement made by Sebothe admitted as evidence, in terms of section 3 of the Law of Evidence Amendment Act. The application was opposed and ultimately refused by the arbitrator.

[5] The employee then gave evidence and stated that his only involvement in the matter was to introduce a Mr. Tshepo Pholo to Sebothe, who had formally been his girlfriend. During January 15, he introduced Pholo to Sebothe at the bank, where he was not party to the discussion and was unaware of what had been discussed. While the employee did not dispute that he had been present at the bank, he denied that he had participated in any attempted fraud and that he had any knowledge of Pholo’s intentions.

[6] In her award, the arbitrator first dealt with the preconditions for the reception of hearsay evidence. The arbitrator made reference to the provisions of section 3 (1) (c) of the Law of Evidence Amendment Act, 1998 and the factors to which she was required to have regard. After a consideration of those factors, given that the purpose of the admission of the evidence was simply to confirm the evidence already given by Morema and that it did not contain any direct evidence in relation to the charges brought against the employee, the arbitrator concluded that it was not in the interests of justice to allow the statement of hearsay evidence.

[7] In regard to the issue of substantive fairness, the arbitrator observed that she was required to determine whether the applicant had breached any workplace rule, and if so, whether the dismissal was the appropriate sanction. The arbitrator noted that the applicant had chosen to call only Morema as a witness, his testimony ‘in a nutshell’ was that he had received a tip from the bank’s fraud section, interviewed Sebothe who had stated that four individuals, of the applicant was one, approached the bank and stated that they wished her to transfer money from Coetzee’s account to them. Sebothe had not been specific as to

who had the information regarding Coetzee and Morema had been unable to identify the individuals apart from the employee.

[8] The arbitrator recorded that there was a dispute of fact as to whether, when interviewed, the employee had told Morema that he was involved in the matter on account of financial trouble. The employee’s version was that he had said no such thing to Morema. The arbitrator observed that Morema had made a good impression as a witness, as had the employee. She went on to note that faced with two mutually destructive versions, the party on whom the onus rested (in this case, the applicant) could only succeed if it satisfied the hearing on a balance of probabilities that its version was true and correct, and that the version advanced by the

other party is false or mistaken and could still be rejected. The arbitrator concluded that the applicant’s case was ‘built

on circumstantial and hearsay evidence’. She concluded further that the applicants only witness, Morema, had presented ‘a lot of hearsay evidence’ and that his opinion as to the employee’s guilt was based on Sebothe’s statement, the video footage that he had observed and the concession that he said the employee had made when he interviewed him. However, it was clear from the evidence that Sebothe had not implicated the employee in any wrongdoing in the statement.

[9] The arbitrator reached the following conclusion:

74. From the evidence that was presented in this arbitration seem that there is a lot of speculation and conjecture not a lot of real evidence. No evidence was led to indicate that the applicant had intentionally directly approached Ms. B Sebote; there is no evidence that he misrepresented facts to her; all that Mr. Coetzee’s account/estate suffered any prejudice as a result thereof.

75. It is clear that the applicant was charged with misconduct as he was seen on the day of the alleged incident in the bank, when other suspects were also present in the bank. The applicant’s reason for being in the bank is reasonable and also this an explanation that he has given to the chairperson of the internal disciplinary hearing ….

76. It would seem that the respondent’s case against the applicant is merely build (sic) on conjecture and speculation. The applicant’s version of events also seems probable and no evidence was led to indicate that it was not in a relationship with Ms. B Sebote before, which might have resulted in his evidence being found to be improbable. Although there were some inconsistencies in the applicant’s evidence, these are not so material as to affect the probative value of the applicant’s evidence, especially taking into consideration that the applicant testified almost 3 years after the disciplinary hearing.

78. Taking into consideration that there is no real evidence implicating the applicant and no evidence to support the circumstantial hearsay evidence of the respondent, find that the probabilities favours the applicant and that the respondent did not discharge the onus to prove that the applicant committed the alleged misconduct.

[10] The applicant has raised a number of grounds for review, the primary ground being that the arbitrator committed misconduct in relation to her duties by failing to consider and allow the evidence of Sebothe to be admitted despite being appraised of the circumstances under which it was intended.

[11] This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask are whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21). As the courts have noted, the review test sets a high threshold, one that will not often be met. (On the policy of permitting the right of review as opposed to a broader right of appeal, see Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC) at [50].)

[12] The primary task of an arbitrator confronted by a material factual dispute is to determine the underlying probabilities. The court must deal with mutually destructive versions by weighing the evidence tendered by the parties and applying the probability test and if necessary, to take into account the credibility of the witnesses. It was thus incumbent on the applicant at the arbitration hearing bearing the onus as it does, to satisfy the arbitrator that its version is true and therefore acceptable, and that the version advanced by the respondents was false or mistaken and thus fell to be rejected. The arbitrator is obliged to weigh up and consider whether probabilities fall and thus determine where the truth probably lies (see National Employers General Insurance Co v Jagers 1984 (4 SA 437 (A); Myburgh and Bosch Reviews in the Labour Courts at 262-4).

[13] It is trite that a review court will ordinarily be reluctant to interfere with the exercise of discretion, provided that the discretion was not exercised capriciously or arbitrarily. In the present instance, the arbitrator exercised a discretion after having considered the factors listed in section 3 (1) (c) and concluded that it would be contrary to the interests of justice to admit the hearsay evidence sought to be admitted by the applicant. The arbitrator’s reasoning is sound – the probative value of the evidence sought to be admitted was limited, given the common cause facts that the employee was present in the bank at the relevant time. Further, insofar as the reasons proffered by the applicant for Sebothe’s failure to attend the arbitration proceedings are concerned, it was not in dispute that the employee and Sebothe knew each other, and had been in a relationship. There was no evidence of any intimidation as claimed by the applicant’s representative. The arbitrator’s

decision to exclude Sebothe’s statement cannot be faulted.

[14] It is also trite, contrary to what the applicant appears to submit, that an arbitration is a de novo proceeding and that the arbitrator is in joint to establish the existence or otherwise of any misconduct and the fairness of the sanction of dismissal by reference to the evidence that is led. Insofar as the applicant’s assessment of the evidence before her is concerned, the arbitrator applied the correct test and came to the decision she did on the basis of that evidence and after the determination of probabilities and the application of the onus of proof. I fail to appreciate how it can be said that the arbitrator’s decision was so unreasonable that it fell outside of a band of decisions to which a reasonable decision-maker could come on the available evidence. For these reasons, in my view, the applicant has failed to meet the threshold for review and the application stands to be dismissed.

[15] In so far as costs are concerned, this court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. I must necessarily take into account the fact that the employee has succeeded in his opposition to the review application, and that he has incurred legal costs in doing so. What weighs further with me in this matter is the fact that the applicant has conducted these proceedings with less than due diligence. The applicant failed to file the record timeously, a matter that was the subject of a successful application for condonation, in which the court expressly observed that the applicant’s prospects of success were a neutral factor. The applicant failed to file a practice note as required by the practice manual, a matter that was rectified by the employee’s representatives. In short, I see no reason why the employee should be deprived of his costs. Although his counsel sought costs on a punitive scale, the applicant’s conduct has not been so egregious so as to warrant such an order, and the order for costs is limited to those incurred on a party and party basis.

I make the following order:

1. The application is dismissed, with costs.

______________________________

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Adv. Ntshangase

Instructed by:

Leepile Attorneys

For the respondents: Adv. O Legae

Instructed by:

Nkulu Attorneys