South African Police Service v Safety And Security Sectoral Bargaining Council and Others (JR 1881/2010) [2013] ZALCJHB 315 (18 October 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 1881/2010

DATE: 18 OCTOBER 2013

NOT REPORTABLE

In the matter between:

SOUTH AFRICAN POLICE SERVICE.........................................................Applicant

And

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL................................................................First Respondent

R MOLETSANE N.O..................................................................Second Respondent

P MOFOKENG.................................................................................Third Respondent

Heard : 3 May 2013

Judgment: 18 October 2013

Summary : Application for review on grounds that the award was unreasonable. The arbitrator failed to consider the probabilities and this failure abdicated his duties. The arbitration award is reviewed and set aside and the matter is remitted back for a hearing de novo.

PRINSLOO, AJ

Introduction

[1] The applicant (the South African Police Service) is seeking to review and set aside an arbitration award issued on 24 June 2010. The issue in dispute was whether the third respondent’s (‘Mofokeng’) dismissal was substantively fair.

[2] The first respondent (‘the arbitrator’) found that the third respondent’s dismissal was substantively unfair and ordered that he be re-instated retrospectively from date of dismissal.

Background facts

[3] Mofokeng was employed as a Constable since October 2001. In 2009 he was charged with two counts of misconduct and following a disciplinary enquiry, he was found guilty on a charge involving a corrupt transaction that took place on 3 February 2009.

[4] The incident that took place on 3 February 2009 involved a Mr Ncube (‘Ncube’), who testified at the internal disciplinary

enquiry and the subsequent arbitration. He testified that on 3 February 2009 he received a phone call from one Constable Makofane

(‘Makofane’) who said he wanted to see Ncube in respect of stolen furniture and requested to meet him at a specified address. Ncube drove to the specified address and found Makofane there, who then contacted Mofokeng. After approximately ten minutes Mofokeng arrived and Ncube was told that Mofokeng was investigating the case of the stolen Lubners’ furniture. Ncube stated that he knew nothing about the stolen furniture however he was taken to the detectives’ offices at the Benoni police station.

[5] According to Ncube he was again questioned about the stolen Lubners’ furniture when they arrived at the Benoni police station and when he stated that he knew nothing about it, Mofokeng said he was going to arrest him whereupon Makofane indicated that Mofokeng should wait as they could ‘organise something’. Ncube was then asked how much money he had and when he responded that he did not have money, Mofokeng said he saw him driving different cars and that he should sell a car to pay them. To this, Ncube testified that he responded by saying the cars were not his.

[6] Makofane asked Ncube how much money he could organise and indicated that they would want R 20 000.00 Ncube said he was able to raise R 3 000.00 only but Makofane demanded R 5 000.00. After Makofane phoned Ncube on numerous occasions to find out about the money, Ncube reported the matter to Johannesburg Organised Crime. Officials from the Organised Crimes Unit provided Ncube with the R 3 000.00 demanded by Makofane and after co-operation with the Organised Crimes Unit, the money was handed over to Makofane.

[7] Makofane was subsequently arrested and he told the Organised Crimes Unit’s officials that it was Mofokeng who had sent him to collect the money.

[8] Mofokeng’s version was that before he could enter the office of Makofane he received a phone call and was unable to proceed to the office. Instead one constable Ramaube joined them in the office. Mofokeng testified that he never saw Ncube driving many cars and denied that he asked Ncube to sell his car.

[9] Makofane and Mofokeng were subsequently charged with acts of misconduct and after a disciplinary enquiry was held, they were found guilty on a charge involving a corrupt transaction that took place on 3 February 2009 and were subsequently dismissed.

[10] Mofokeng referred an unfair dismissal dispute to the first respondent and challenged the substantive fairness of his dismissal.

The arbitration award

[11] The arbitrator and second respondent in this application considered whether Mofokeng’s dismissal was substantively fair and found that the only aspect that links Mofokeng to the corrupt transaction was the allegation that Mofokeng suggested to Ncube that he sell his car in order to raise the R 20 000.00 Makofane and Mofokeng demanded.

[12] When considering the two versions presented by Mofokeng and Ncube, the arbitrator considered their credibility as witnesses and found both Ncube and Mofokeng’s demeanour during the arbitration to be impressive.

[13] The arbitrator considered the reliability and consistency of the evidence and found that Mofokeng should be given the benefit of the doubt as the two versions were mutually destructive and that the applicant failed to discharge the onus to prove that Mofokeng’s

dismissal was substantively fair. The arbitrator then ordered retrospective re-instatement.

Grounds for review

[14] The applicant seeks to review the arbitration award on the ground that the decision reached by the arbitrator is not reasonable.

[15] In determining whether the arbitrator’s decision was a reasonable one, his findings should be considered.

[16] The arbitrator found Ncube to be an impressive witness. In the same breath he finds Ncube’s evidence inconsistent and unreliable and he does so for two reasons. Firstly, he found that after Ncube had left the detectives offices in Benoni, he did not report the matter immediately to the station commander and, if it were indeed as serious as alleged, a reasonable person would have reported the matter immediately.

[17] The arbitrator thus found that Ncube’s failure to report the matter immediately to the station commander renders his evidence unreliable. In my view, this finding is not justifiable and reasonable as failure to report a matter immediately cannot in itself render evidence unreliable. In fact this finding further indicates that the arbitrator ignored or disregarded the explanation tendered by Ncube as to why he did not report the matter to the station commander immediately. It further indicates that the arbitrator

ignored or disregarded the fact that Ncube indeed reported the matter to the Organised Crimes Unit two days later and that Makofane was indeed arrested as a result of the report made by Ncube and that Makofane upon his arrest clearly implicated Mofokeng.

[18] The arbitrator further finds Ncube’s evidence unreliable as it was not explained why Maseko (from the Organised Crimes Unit) gave Ncube R 3 000.00 when Makofane had allegedly demanded R 5 000.00. This finding is unreasonable as no conclusion could be drawn from the discrepancy in the amount demanded from and given to Ncube for purposes of setting up a trap with the Organised Crimes Unit. This discrepancy does not have any bearing on the reliability of the evidence adduced by Ncube.

[19] Insofar as the arbitrator found Ncube’s evidence inconsistent, he highlighted the two aspects where he found the evidence to be inconsistent. The first inconsistency is that Ncube testified that Makofane told him he was taking advantage of them (meaning Makofane and Mofokeng) and later testified that Makofane said he was taking advantage of him, excluding Mofokeng. The other inconsistency is that Ncube testified that the cars he drove did not belong to him when Mofokeng suggested that he should sell a car to pay them and later testified that he buys and sells cars. The arbitrator found Mofokeng’s evidence consistent.

[20] It appears to me that the inconsistencies highlighted by the arbitrator were not relevant and even if they were relevant, they

were not material and could not have led the arbitrator to make a finding that the evidence of Ncube was inconsistent in totality.

[21] Mr Myburgh also testified on behalf of the Applicant. He is a Commander of the Organised Crimes Unit. The arbitrator found that the aspect of Myburgh’s evidence in which he testified that Maseko of the Organised Crimes Unit had informed him that Ncube told him (Maseko) that Makofane and Mofokeng demanded money is hearsay. The arbitrator then disregarded Myburgh’s evidence in its entirety and attached no weight to it whatsoever.

[22] On his own findings the arbitrator was confronted with two mutually destructive versions and in his conclusion he found that his credibility findings led him to give Mofokeng the benefit of the doubt and that the applicant failed to discharge its onus to prove that the dismissal of Mofokeng was substantively fair.

[23] In Stellenbosch Farmer’s Winery Group and another v Martell1 the Supreme Court of Appeal held in respect of two mutually destructive versions that:

‘The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. 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’s 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 extra curial 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’s 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 or 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 a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”

[24] The question is whether the arbitrator applied the technique as set out in the Stellenbosch Farmer’s case when he was confronted with the two mutually destructive versions and whether he applied his mind to the versions presented in a reasonable and justifiable manner.

[25] It is evident that the arbitrator considered the demeanour of the witnesses and that he found Ncube to be an impressive witness. Having arrived at this finding, the arbitrator should have applied the techniques as set out in the Stellenbosch Farmer’s case and had to consider the relevant factors to determine the probabilities. Instead the arbitrator rejected the evidence of a witness he found impressive because he did not report the matter to the station commander immediately and because Makofane had demanded R 5 000.00 but instead only R 3 000.00 was given to Ncube by Maseko.

[26] The arbitrator misconstrued what he was required to determine and how to determine the probabilities in view of the mutually destructive versions that were placed before him. He failed to consider, alternatively he failed to pronounce on the probabilities having regard to the evidence. He merely jumped to the conclusion that Mofokeng should be given the benefit of the doubt.

[27] I have no doubt that that the arbitrator did not carry out his duties as an arbitrator and did not apply his mind to the evidence before him when he failed to consider the evidence, the reliability and credibility of witnesses and the overall probabilities holistically. The arbitrator never considered the reasons why Ncube would implicate Mofokeng as he had no reason to do so and there was nothing he would gain by doing that.

[28] I have already stated that the arbitrator rejected the evidence of Myburgh in its entirety for finding that one aspect thereof was hearsay evidence. On the other hand the arbitrator accepted the version of Mofokeng without considering the probabilities associated with his version and the aspects set out in the Stellenbosch Farmer’s case. He merely gave Mofokeng the ‘benefit of the doubt’.

[29] The arbitrator effectively abdicated his duty to consider the probabilities and to make findings and pronounce on the probabilities. He made no findings on the probabilities and never set out reasons why the version presented by the applicant was so improbable that it was to be rejected, or for that matter why Mofokeng’s version was to be accepted, apart from giving him the benefit of the doubt.

[30] The arbitrator disregarded or ignored evidence that was relevant without giving reasons for rejecting the evidence.

The test on review

[31] The test that this Court must apply in deciding whether the arbitrator's decision is reviewable has been rehashed innumerable

times since Sidumo and Another v Rustenburg Platinum Mines Ltd and Others; 2 ‘whether the conclusion reached by the arbitrator was so unreasonable that no other arbitrator could have come to the same

conclusion.’ The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions

that a reasonable decision maker could make.

Conclusion

[32] In reviewing the arbitration award, the grounds for review as raised by the applicant must be assessed and this Court can only decide whether the arbitrator’s decision was so unreasonable that no other arbitrator could have reached the same decision. The test to be applied is a strict one.

[33] Having considered the evidence adduced at the arbitration proceedings, the findings made by the arbitrator and the grounds for review as raised by the applicant, I find that the arbitrator's decision fell outside of the band of decisions to which a reasonable

decision maker could come to. The conclusion that the arbitrator reached is not one that a reasonable decision maker could have come to and it is therefore subject to review.

[34] The arbitrator abdicated his responsibilities and failed to carry out his duties as an arbitrator in a reasonable manner.

[35] Both parties asked for costs and I can see no reason why costs should not follow the result.

Order

[36] In the premises I make the following order:

36.1 The arbitration award issued on 24 June 2010 under case number PSSS674-09/20 is reviewed and set aside;

36.2 The matter is remitted to the first respondent for an arbitration de novo before a commissioner other than the second respondent;

36.3 The third respondent to pay the costs.

Prinsloo, AJ

Acting Judge of the Labour Court

Appearances:

For the Applicant : Advocate S Tilly

Instructed by : The State Attorney

For the Third Respondent : Advocate N Basson

Instructed by : Givin Alexander Attorneys

1 2003 (1) SA 11 (SCA).

2(2007) 28 ILJ 2405 (CC) at para 110.