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THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Not reportable

case no: C 46/14

In the matter between:

PATRICK RALPH ANDERSON		First Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL		First Respondent
COMMISSIONER DE VLIEGER- SYNHAEVE N.O.		Second Respondent
CITY OF CAPE TOWN		Third Respondent

Heard:           28 April 2016

Delivered:   02 December 2016

Summary:     (Review – obligations of law enforcement officer – alleged misconstruction of evidence and failure to deal with material evidence – no basis for such a finding and test for review on such grounds not satisfied)

JUDGMENT

LAGRANGE J

Introduction

[1] The applicant in this review application, Mr P Anderson (‘Anderson’) was employed as the senior inspector of the visible monitoring unit of the Metal Theft Unit of the city of Cape Town, the third respondent. He was dismissed after being found guilty of the following charge:

“It is alleged that you committed an act of gross misconduct in that on or about six September two thousand and twelve you did not act in the best interest of the City of Cape Town and in such a way that the credibility and integrity of the City of Cape Town were compromised, when you failed to arrest two officials, namely Keagan Anderson and Henry Peterson, found in possession of stolen copper cable and/or failed to report the matter to the Cable Theft Unit, when it was reported to by the security officer Sophia Fransman, at Parow Electricity Depot.”

[2] When the matter was referred to arbitration, the arbitrator confirmed the dismissal finding that Anderson was guilty as charged except that he was not obliged to have contacted the Cable Theft Unit (‘CTU’).

[3] The incident giving rise to the charges may be summarised as follows. After leaving work, the applicant had been waiting in his official vehicle to collect his son, who had been working with a colleague Peterson at Parow Electricity Depot. When Anderson’s son and Peterson were leaving the premises their bags were searched by a security officer Ms Fransman (‘Fransman’) and were found to contain boxes with cabling inside. Fransman asked Mr Bronkhorst (‘Bronkhorst’), the superintendent of construction at the electricity Depot, to contact the law enforcement. Bronkhorst tried to phone the number appearing on Anderson’s official vehicle but said he could not get through. The conversation then took place between Bronkhorst and Anderson. According to Fransman, they tried to persuade her that the amount of cabling was insignificant and it would be difficult to make a good case against the two suspects. She also claims that they motivated that the incident should not be pursued because the suspects could lose their jobs and had financial responsibilities. Nonetheless, when it became clear she would not back down, Anderson summonsed two other law enforcement officers from the unit to the scene.

[4] Bronkhorst and Anderson then held a discussion with the suspects outside the security building. The manager of the security company subsequently arrived and so did the two law enforcement officers. Anderson approached the two officers before they entered the security office. Bronkhorst said he would report the matter at the depot the following day and the manager of the security company locked away the suspected stolen cabling. One of the law enforcement officers who had been summonsed by Anderson, Mr Abels, said that in the light of the comments by the manager of the security company and in view of the fact that as he understood it they had simply been called to the scene to assist Anderson, they took no action as the matter seemed to be resolved. Had he arrived at the scene first, he would have contacted the Metal Theft Unit as he did not normally work with cable theft.

[5] There were not significant differences in the evidence except in relation to a few points. Bronkhorst claimed that when he looked inside the boxes containing the cables he had seen COCT seals which are used to seal prepaid electricity boxes. These seals were clearly property of the City of Cape Town. He agreed that the suspects had said they did not work with wires that day but he denied saying nothing had been stolen as Anderson had claimed. Anderson said he would never normally arrest suspects with that kind of cable in their possession unless the cables were identified by the electricity department because such cases never stood up in a court of law. Photographic evidence led at the arbitration of the contents of the boxes showed the seals Bronkhorst was referring to.

[6] The main contentions in Anderson’s defence related to whether it was appropriate or indeed competent to have arrested the two suspects given what was found in their possession. A secondary defence was that, although he was still in uniform and driving his official vehicle he was not on duty at the time of the incident.

The award

[7] The crux of the arbitrator’s award may be summarised in the following terms:

7.1      The arbitrator considered the evidence that there were circumstances in which it would be difficult to make an arrest if ownership of the suspected stolen goods could not be established at the time. However, in this instance he decided that Bronkhorst’s evidence was more probable and that he was a more credible witness than Anderson. The presence of the COCT seals in the boxes sufficient to establish that the goods were suspected stolen property. The explanation of the suspects that they had obtained the goods outside the employer’s premises and taken them to work with them was also dubious because all the witnesses acknowledged that it was established practice to declare such goods on entering the premises, especially if they were items that the employees worked with on a regular basis. Consequently, the arbitrator was satisfied that section 40 (b) of the Criminal Procedure Act 51 of 1997 (‘the CPA’) applied. That section states:

“40. Arrest by peace officer without warrant-(1) a peace officer may without warrant arrest any person-

...

(b) whom he reasonably suspects of having committed an offence referred to in schedule one, other than the offence of escaping from lawful custody;...”

7.2      Anderson failed to make any arrests. He also made statements to try and minimise the situation. Even if he had understandably felt uncomfortable about arresting his son or being involved because his son was a suspect, his actions gave the impression that he was involved and gave the impression to the more junior law enforcement officers who arrived later that everything was under control. He never sought to extricate himself from the situation or express his concerns about a personal conflict of interest at the time.

7.3      In summing up, the arbitrator stated:

“(T)he applicant’s function, as a law enforcement officer, was that he had to intervene when he caught the suspects with the goods and there was a reasonable suspicion that these were stolen goods. That would have involved taking statements from the security officer in terms of what she had uncovered and taking a statement from Mr Bronkhorst to confirm that this was Council property. With both statements he would have had enough evidence to arrest the suspects. Or if he felt that he could not intervene because a family member was involved, he should have stated clearly that he did not wish to get involved and leave the scene after ensuring that the backup was aware of the situation. I therefore agree that the applicant did not act in the best interest of the City of Cape Town when he did not affect an arrest.”

7.4      The arbitrator also accepted that the credibility and integrity of the city had been compromised because even though the event did not occur in view of the general public, it was clear that the two security officers on site who were not municipal employees at the impression that there was an attempt to cover up the theft which negatively affected their impression of the integrity of the city.

Grounds of review and evaluation

[8] The applicant failed to set out any factually supported grounds of review in his founding affidavit which merely sketched what might be characterised as a conceptual framework for a review application. It is only in the supplementary affidavit that substantive grounds of review are set out.

[9] Firstly, Anderson contends that there was no evidence to support the conclusion that he was obliged to make an arrest in terms of any policy.

[10] Alternatively, the arbitrator should have considered whether section 40 of the CPA dictated to city law enforcement personnel as to when an arrest may be affected. Relatedly, the arbitrator also failed to consider if section 40 of the CPA did apply to its law enforcement officials, whether Anderson was indeed a peace officer as defined in the CPA.

[11] Secondly, the arbitrator could not have concluded that the suspects were in possession of stolen copper cable in the light of the evidence provided.

[12] Thirdly, the arbitrator decided that Anderson was duty bound to have effected an arrest although off duty at the time without any evidence being led to support the inference that he would have been obliged to do so when he was off duty.

[13] Lastly, the applicant claims that the arbitrator misconstrued certain evidence to such an extent that the award was unsustainable. The instances of alleged misconstruction cited by the applicant, which for the most part essentially repeat points made above, relate to :

13.1   evidence of Anderson’s obligation to act when still in uniform but off duty;

13.2   the circumstances in which he should effect an arrest;

13.3   whether the goods found in the suspects position were actually stolen;

13.4   whether the applicant was correct in advising his son that he did not need to consent to his photograph been taken by the manager of the security firm and whether such conduct amounted to misconduct, and

13.5   whether the COCT’s credibility had been compromised.

[14] In relation to the first ground of review, evidence was led by Mr Arendse of a number of provisions in the CPA relating to the powers of arrest of peace officers which included not only s 40(1)(b) of the CPA but also any persons in the following circumstances set out in the subsections mentioned below:

“(e) who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing;

...

(g) who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or  produce;...”

[15] The other point which must be made in relation to the first ground of review is that Anderson never disputed the evidence of Arendse that he (Anderson) was a peace officer in terms of section 334 of the CPA. Likewise Arendse’s evidence that Anderson also had effected arrests of other persons in possession of copper wire on other occasions was not disputed.

[16] A contention advanced by Anderson in the course of the arbitration as well as in argument in relation to the second ground of review was that the arbitrator could not reasonably have concluded that the suspects were in possession of stolen copper wire on the evidence. However, I do not see why it was necessary for the arbitrator to conclude that Anderson’s son and his colleague were actually in possession of stolen copper wire in order to conclude that Anderson ought to have arrested them or alternatively handed the matter over to other enforcement officers to deal with, on account of his personal connection with one of the suspects.

[17] On the basis of the factual findings of the arbitrator, which were reasonable, he was justifiably satisfied that they were in possession of copper wire in boxes which also contained seals which plainly belonged to the COCT. That was plainly sufficient to establish a reasonable suspicion that the wire in the boxes could also be COCT property. When this was coupled with the unlikelihood that the suspects would have brought the property to work with them but not declared it on entering the depot, the probability that they had obtained the property from the depot increased. Consequently the arbitrator’s inferences drawn from the evidence cannot be considered in any way unreasonable. It is true that there was evidence that law enforcement officials were reluctant to make arrests ‘willy-nilly’ when a person was apprehended with copper wire unless ownership of the wire could be established. However, the power of arrest is not premised on hard and fast proof that the property in question is definitely not in the lawful possession of the suspect, but on the basis of available evidence which tends to cast reasonable doubt about whether that person is the real owner of that property.

[18] It is also not true that there was no evidence led about the applicant’s obligation to effect an arrest even when he was not on duty. It is true that Arendse did not allude to any specific regulation or provision in this regard but clearly expressed his understanding of the obligations of an officer in uniform who is directly confronted with evidence of a suspected crime when off duty. The argument that Anderson was entitled to simply look the other way and ignore the situation that confronted him shortly after knocking off work implies that his duty to look after his employer’s interests ended as soon as he knocked off work every day. The implications of such a proposition are that even if he saw suspects removing copper wire from a COCT vehicle whilst the driver of the vehicle was obviously unaware what was happening, he could simply ignore the incident unfolding in front of him and, by not intervening, act to the detriment of his employer. The absurdity of contending for such a policy is evident when its practical implications are considered. Consequently, the fact that the obvious has not been stated in a written policy, does not mean the arbitrator was wrong in attributing a responsibility  to Anderson to intervene or at least to ensure that the matter was attended to by other enforcement officers who were on duty at the time. Had Anderson detached himself from involvement in the incident as soon as he realised his son was implicated and handed the matter over to the officers he called, the outcome might well have been different.

[19] In so far as there was an issue about Anderson advising his son that he did not have to consent to his photograph being taken, that finding was not one which was essential to determine Anderson’s guilt and it is correct it did not form part of the charges as such. The arbitrator’s comments on that conduct I understand to have been simply another illustration that Anderson was conflicted in the situation he was confronted with, but instead of detaching himself from it, he did not hand it over to others to deal with. In any event, nothing significant turns on this particular issue. On the question of the COC T’s credibility been compromised, the arbitrator was well aware that the incident did not take place in a public venue. Nonetheless, his conclusion that the security personnel of the company responsible for security at the Depot took an adverse view of Anderson’s actions and it was certainly not unreasonable for the arbitrator to conclude that in their eyes the integrity of the COCT enforcement unit had been compromised which reflected badly on the COCT.

[20] It is important when a party alleges that an arbitrator has misconstrued the evidence as the basis for a review that the party must demonstrate not only that the evidence was misconstrued but that if it had not been misconstrued, the outcome would inevitably have been different. In Head of the Department of Education v Mofokeng and others the LAC held:

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

[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act8  (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence.  Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.”[1]

Based on the evaluation above, I am not persuaded that the applicant has succeeded in establishing that the outcome would necessarily have been different had the arbitrator considered the evidence in the way the applicant contends, quite apart from the fact that in most, if not all, respects the arbitrator cannot be accused of ignoring or misunderstanding material evidence in the case.

Costs

[21] The issue of the costs of the previous postponement of the application on 02 December 2015 remains outstanding. The applicant had applied for a postponement which was granted by the Honourable Rabkin-Naicker J. I did not have the benefit of hearing the argument which was presented, but it appears from the heads of argument presented by the applicant in support of the application for postponement that it was occasioned by the applicant’s counsel at the time only notifying the applicant shortly before the matter was set down that he would not be able to file heads in time having received the brief to do so seven days earlier. Of course, counsel should not have left it so late to advise the applicant’s attorney of his inability to fulfil his brief, but I accept that the postponement was not caused by the applicant or his attorney. In the circumstances, I am reluctant to order the applicant to pay the costs of the postponement.

Order

[22] The review application is dismissed.

[23] The parties must pay their own costs.

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Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES
APPLICANT:	J.V.D. Schyff instructed by Fazloodien Attorneys
THIRD RESPONDENT:	L Witten instructed by Bradley Conradie Halton Cheadle Attorneys

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