---

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 612/ 2020

In the matter between:

TINTSWALO SHARON MANGHENA	Applicant
and
MINISTER OF POLICE	First Respondent
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE	Second Respondent
THE SOUTH AFRICAN POLICE SERVICE	Third Respondent
GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL	Fourth Respondent
MATHABO MAKWELA N.O.	Fifth Respondent

Heard: 27 July 2023

Delivered:   10 August 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 10 August 2023.

JUDGMENT

PRINSLOO, J

 

Introduction

[1] The Applicant was employed as a constable in the South African Police Service (SAPS) and she was stationed at the Giyani Police Station in Limpopo.

[2] The Applicant was charged with misconduct and after she was found guilty, she was dismissed on 10 March 2017. Her internal appeal failed on 23 March 2017 and she subsequently referred an unfair dismissal dispute to the Fourth Respondent.  

[3] The issue to be decided by the Fifth Respondent (the arbitrator) was whether the Applicant’s dismissal was fair, which she ultimately found substantively and procedurally fair and the Applicant’s case was dismissed.

[4] The Applicant seeks to review and set aside an arbitration award dated 23 March 2020 and issued under case numbers PSSS503-17/18 and PSSS150-17/18. The First to the Third Respondents (Respondent) opposed the application for review.

[5] In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings as well as the charges she faced and was dismissed for. Although procedural fairness was challenged during the arbitration proceedings, there is no ground for review in respect of the arbitrator’s findings on procedural fairness and this Court will not concern itself with the evidence adduced on procedural fairness.

[6] The Applicant faced three charges of misconduct and she was found guilty of two, namely:

‘Charge one:

In terms of section 40 of the South African police Service Act (Act 68 of 1995), read with the South African Police Service Discipline Regulations 2006, you are hereby charged with misconduct, in that you allegedly contravened the provisions of Regulations 20(z) of the said Regulations in that at or bear Pretoria on or about 2016-05-26, you allegedly committed a common law or statutory offence namely Corruption, in that, you unlawfully and intentionally demanded and accepted gratification in the form of cash money to the sum of five thousand rand (R5 000), from Mr David Geturu Gatama, in return for you not to arrest him and make a case docket disappear as per Brooklyn CAS 15/03/2016 thereby contravening the provisions of section 3 (a), ii (cc) and iii (Prevention and Combating of Corrupt Activities Act no. 12/2004)

…

Charge three

In terms of section 40 of the South African Police Service Act 1995 (Act 68 of 1995), read with the South African Police Service Discipline Regulations 2006, you are hereby charged with misconduct, in that you allegedly contravened the provisions of Regulations 20(z) of the said Regulations in that at or near Pretoria on or about 2016-05-31, you allegedly committed  a common law or statutory offence namely Corruption, in that, you unlawfully and intentionally demanded and accepted gratification in the form of cash money to the sum of twenty thousand rand (R20 000), from Mr David Geturu Gatama, in return for you not to arrest him and make a case docket disappear as per Brooklyn CAS 15/03/2016 thereby contravening the provisions of section 3 (a), I (aa), ii (cc) and iii (Prevention and Combatting of Corrupt Activities Act no.12/2004)’

The evidence adduced

The Respondents’ case

[7] The Respondents’ first witness, Captain Sithole, testified that she is stationed at the Provincial Head Office: Detectives and on 31 May 2016, she received a text message from Colonel Maile of the anti-corruption unit requesting authorisation to conduct an undercover operation. Such an operation is conducted in terms of section 252(a) of the Criminal Procedure Act[1] (CPA). Captain Sithole forwarded the request to Adv. Nemaurani at the National Prosecuting Authority (NPA), who gave permission to proceed with the operation and that message was forwarded to Colonel Maile.

[8] She explained that the operation related to police officers who were demanding money from a complainant.

[9] In cross-examination, it was put to her that the section 252(a) application was unprocedural as its purpose was to target one Captain Makwela and to have him arrested and Adv. Nemaurani was not told about the Applicant, wherefore the section 252(a) operation was not authorised in respect of the Applicant.

[10] The second witness was Colonel Maile. It is evident from the transcribed record that his evidence-in-chief is not part of the record that was filed. The transcript starts mid-way through Colonel Maile’s cross-examination and his re-examination is also not transcribed. The Applicant’s representative, in his cross-examination of Colonel Maile, stated that “you tendered quite an elaborate testimony on the 8^th of March and I shall not go through your entire evidence. I will only canvas with you aspects which are only pertaining to my client…” This Court does not have the benefit of Colonel Maile’s evidence-in-chief. In cross-examination, he explained that the Applicant’s name was not mentioned in the section 252(a) application as Mr Gatama only informed them that Captain Makwela had solicited money from him. He conceded that the Applicant was not in the boardroom and that she was not present when the money was exchanged in the boardroom.

[11] Colonel Maile testified that, when the individuals were arrested in the boardroom, the Applicant acknowledged that she introduced herself to Mr Gatama and that she was aware that Captain Makwela demanded R 20 000 from Mr Gatama. Captain Makwela was in fact not a police officer, but his real name is Shadrack Hlongwane and he is the Applicant’s husband. As the Applicant tendered to tell the truth about what had happened, Colonel Maile instructed Captain Nkuna to go with her and to take her statement.

[12] Colonel Maile testified that when a police officer is involved in an operation, he or she must inform his or her immediate commander. The Applicant, all the way from Giyane to Pretoria, came to assist with the ‘arrest’ of Mr Gatama, but she did not inform her immediate commander about that.

[13] It was put to Colonel Maile that he was fabricating evidence against the Applicant and he responded that he had no reason to fabricate evidence against her, he did not know her, he met her for the first time on the day of the arrest and she was not his enemy. He emphasized that whether the Applicant was dismissed or acquitted, he would not benefit anything and he was not testifying on behalf of his employer as he no longer worked for the SAPS.  

[14] The third witness was Captain Nkuna who testified that on 31 May 2026, she was informed by Colonel Maile that he had applied for a section 252(a) entrapment, as there was a complaint that a certain police officer was demanding R 20 000 for a docket to disappear. They were making copies of the money that was to be used in the entrapment.

[15] Mr Gatama went into the boardroom and after a while, Colonel Maile and the team working with him entered the boardroom and they found one David busy counting the money. Whilst Colonel Maile was busy telling him his rights upon being arrested for corruption, his phone rang and it was put on speaker. The person on the other side of the line told David to get out of the boardroom because there was “a lot of movement”. Colonel Maile instructed David to tell the other person to come to the boardroom to assist him with the money as he could not leave with it on his own.

[16] Captain Nkuna peeped through the window and she saw a blue Polo Vivo parked outside, with two male police officers sitting inside. After David called them to come to the boardroom, the two male officers came to the boardroom. They found the Applicant with the person who introduced himself to Mr Gatama as Captain Makwela, waiting outside in a vehicle. They were also told to come to the boardroom.

[17] When the Applicant and the ‘captain’ entered the boardroom, Mr Gatama identified the Applicant as the one who was with the ‘captain’ when he had met them for the first time at the restaurant, when she had introduced herself as Lieutenant Manghena. The ‘captain’ was identified as the person who came to the boardroom to collect the money. At that point, they were arrested and the ‘captain’ was identified as Mr Hlongwane, who was not a police officer. It was found that the Polo Vivo was in fact a police car used by constables Mosima and Mokoena, who were stationed at the Brooklyn police station. They were charged and dismissed with the Applicant.

[18] Captain Nkuna took the Applicant’s statement and asked her why she went to the restaurant and introduced herself to Mr Gatama as Lieutenant Manghena. She explained that she was doing the ‘captain’ a favour because he had asked her to accompany him to see Mr Gatama at the restaurant. She informed Captain Nkuna that the ‘captain’ was her husband.

[19] It is evident from the transcribed record that a great deal of the cross-examination of Captain Nkuna was spent on technical and irrelevant issues relating to signatures etcetera on the form capturing the Applicant’s statement to Captain Nkuna, which did not take the Applicant’s case any further.

[20] In cross-examination, Captain Nkuna confirmed that Mr Gatama identified the Applicant as the person who was with Captain Makwela in the restaurant when money was demanded from him. She took the Applicant’s statement and she confirmed in the statement that she was with Mr Hlongwane when they met Mr Gatama at the restaurant on 26 May 2016.

[21] The fourth witness for the Respondent was Lieutenant Colonel de Bruyn, who testified to clarify that the correct regulation, namely Discipline Regulation 2006, was used when the Applicant was disciplined. The cross-examination of the witness is incomplete in the transcribed record.

[22] The last witness for the Respondent was warrant officer Kriek. His evidence was irrelevant and of no assistance with regard to the issues the arbitrator had to decide.

The Applicant’s case

[23] The transcribed record that was filed does not contain any evidence for the Applicant and her version as presented during the arbitration proceedings, is not before this Court.

[24] The issue of the incomplete record was raised with the Applicant as far back as September 2020 when the State Attorney addressed a letter to the Applicant’s attorneys, stating that the record was incomplete and that it did not include the Applicant’s testimony. On 8 September 2020, the Applicant’s attorneys responded that the record was indeed incomplete and indicated that they would request the Fourth Respondent to provide the rest of the record.

[25] The Respondent filed an answering affidavit on 16 October 2020 and once again raised the issue of the incomplete record. The deponent stated that no response had been received from the Applicant regarding the incomplete record and that “a month after we transmitted the email to the applicant’s attorneys, the first to the third respondents decided to proceed without the rest of the record in order not to delay the matter…”

[26] The Applicant has not filed a replying affidavit in response to the Respondent’s averments, nor has she taken any steps to ensure that the complete record of the arbitration proceedings was indeed filed and placed before this Court.

[27] I raised the issue regarding the incomplete record with Mr Ramalekana in Court and he submitted that the Applicant was proceeding with the review application notwithstanding the incomplete state of the transcribed record. The Applicant thus elected to proceed on the record as it is.

[28] I will deal with this issue infra.

Analysis of the arbitrator’s findings and the grounds for review

The test on review

[29] I have to deal with the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2] (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[30] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others,[3] affirmed the test to be applied in review proceedings and held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

[31] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make.[4]

[32] It is within the context of this test that I have to decide this application for review.

The arbitrator’s findings

[33] The arbitrator gave a detailed summary of Colonel Maile’s evidence and, absent a transcribed record of his evidence in chief, there is no basis for this Court to reject the arbitrator’s summary of the evidence. The arbitrator recorded that Colonel Maile testified that Mr Gatama identified the Applicant and Captain Makwela as the persons who he had met at Delanos restaurant, where Captain Makwela told him he could pay R 20 000 for a docket to disappear. Colonel Maile confirmed that he interviewed Mr Gatama and Ms Mabotja, who was Mr Gatama’s business partner.

[34] The arbitrator summarised the Applicant’s evidence and her version was that she never demanded or received R 5 000 or R 20 000 from Mr Gatama, she worked at Gitayane and was not able to arrest Mr Gatama and she had never met Mr Gatama.

[35] The arbitrator accepted the evidence of Colonel Maile and she found him to be a credible witness, who was at the scene when the arrests were made. The arbitrator found that all the applicants in the arbitration (Constables Mosima, Mokoena and Manghena) were aware of the fact that ‘Captain Makwela’ had demanded money from Mr Gatama and they were aware of their criminal conduct but acted in common purpose to satisfy their own intentions.

[36] The arbitrator found that the Applicant was aware of the conduct of the imposter, Mr Hlongwane, that there was no clear reason as to why she was at the offices of Mr Gatama at the time she was off duty and that the only reasonable conclusion as to her presence at the offices of Mr Gatama, was that she was part of the plan to commit the criminal act of corruption.

[37] The arbitrator found that the fact that the imposter Captain Makwele demanded the money from Mr Gatama does not absolve the applicants (referring to Constables Mosima, Mokoena and Manghena) from the criminal act and the serious misconduct as they were acting in common purpose with Mr Hlongwane. They knew what Mr Hlongwane was doing and they associated themselves with his conduct.

[38] Other material evidence implicating the Applicant was that she was present at the offices of Mr Gatama when she had no reason to be there. The arbitrator found that, the fact that she was there was proof that she was working with Mr Hlongwane, that she was complicit in the act of corruption and had the same intention with Mr Gatama as Mr Hlongwane.

[39] The arbitrator did not accept the applicants’ (referring to Constables Mosima, Mokoena and Manghena) evidence as credible. She found that they had provided weak evidence which showed that they attempted to extricate themselves from the commission of a crime and serious misconduct. The arbitrator rejected the Applicant’s evidence that as she was based in Giyani and not at the Brooklyn station she could not arrest Mr Gatama, yet she failed to explain why she was at the offices of Mr Gatama, at the same time as Mr Hlongwane. She ought to have known that Mr Hlongwane was not a police officer. The Applicant was furthermore identified as being present when Mr Hlongwane demanded the R 20 000 from Mr Gatama.

[40] The arbitrator found that the conduct of the applicants was abhorrent, they became criminals in blue uniform and they breached the trust that the members of the public place in police officers.  

[41] They showed no remorse but still sought to mislead the council as to their true involvement in their conduct. Their conduct resulted in the employment relationship being intolerable and any action short of dismissal, would be wholly inappropriate. Dismissal was fair to deal with the Applicant’s abhorrent conduct.

The grounds for review

The difficulties in the Applicant’s case

[42] The Applicant has raised a number of issues in her founding affidavit and it was no easy task to determine what her actual grounds for review are as the Applicant made numerous sweeping, unsubstantiated statements. The application appears to be more of a critique of each and every paragraph of the arbitration award than a properly drafted review application.

[43] Considering the test I have to apply, there is an obvious difficulty with the Applicant’s case in that she seeks to attack each and every finding of the arbitrator on every piece of evidence. The Applicant has taken a microscopic approach and dissected and set out every fact she believes was either not considered by the arbitrator or incorrectly accepted by her.

[44] The test on review and the context within which it is to be applied is that the review Court is not required to take into account every factor individually but must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make based on the facts placed before him/her.[5]

[45] The LAC has confirmed that to do it differently or to evaluate every factor individually and independently is to defeat the very requirement of section 138 of the Labour Relations Act[6] (LRA) which requires the arbitrator to deal with the substantial merits of the case and to do so expeditiously and fairly.

[46] The Applicant’s application has a distinct flavour of an appeal, rather than a review.

[47] It has been emphasized by the Courts that a review is not an appeal. This was confirmed in Duncanmec (Pty) Ltd v Gaylard NO and others[7] (Duncanmec) where the Constitutional Court held that:

‘[40]  As is apparent from Sidumo, the genesis of the reasonableness standard of review is section 33(1) of the Constitution which confers on everyone the right to administrative action that is lawful, reasonable and procedurally fair. Since an award like the one we are concerned with here constitutes administrative action, the Constitution requires it to be procedurally fair, lawful and reasonable. This means that an award that fails to meet these requirements is liable to be set aside on review. These requirements are in addition to the grounds of review listed in section 145 of the LRA. However, to some extent the latter grounds may overlap with the constitutional requirements. But the reasonableness standard is sourced from section 33 of the Constitution alone. It does not form part of the overlap.

[41] Sidumo cautions against the blurring of the distinction between appeal and review and yet acknowledges that the enquiry into the reasonableness of a decision invariably involves consideration of the merits. So as to maintain the distinction between review and appeal this Court formulated the test along the lines that unreasonableness would warrant interference if the impugned decision is of the kind that could not be made by a reasonable decision-maker.

[42] This test means that the reviewing court should not evaluate the reasons provided by the arbitrator with a view to determine whether it agrees with them. That is not the role played by a court in review proceedings. Whether the court disagrees with the reasons is not material.

[43] The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.’

[48] In Bestel v Astral Operations Ltd and others,[8] the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted. The LAC held that:

‘…the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.’

[49] The review test to be applied in casu is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator arrived at an unreasonable result.

[50] The Applicant’s affidavit is not assisting to set out her grounds for review, but she made a lot of unsubstantiated and sweeping statements. For instance and to illustrate this point: the Applicant stated that the arbitrator found that “the conduct of the applicants was abhorrent. They became criminals in blue uniform that is worn by members of the respondent”. The Applicant took issue with this on the basis that there was no evidence that she was in police uniform and that this is the arbitrator’s “own regrettable imagination. Hence …the commissioner had delivered a biased award…” This displays a complete misunderstanding of the arbitrator’s finding. The arbitrator considered the appropriateness of the sanction and referred to the Applicant, as a police officer, as someone in a blue uniform. The arbitrator certainly did not find that the Applicant was wearing a uniform at the time of the incident and the Applicant’s understanding of the award in that regard is wrong.

[51] Be that as it may, bias in the context of a review application is regarded as a patent gross irregularity. The principles related to the concept of bias had been set out by the Courts and a brief overview of those principles is necessary.

[52] In Turnbull-Jackson v Hibiscus Coast Municipality and others (Ethekwini Municipality as amicus curiae),[9] the Court dealt with unfounded allegations of impropriety made against public officers, and held:

‘Allegations of bias, the antithesis of fairness, are serious. If made with a sufficient degree of regularity, they have the potential to be deleterious to the confidence reposed by the public in administrators. The reactive bias claim stems from unsubstantiated allegations of corruption and incompetence. These are serious allegations, especially the one of corruption. Yes, if public officials are corrupt, they must be exposed for what they are: an unwelcome, cancerous scourge in the public administration. But accusations of corruption against the innocent may visit them with the most debilitating public opprobrium. Gratuitous claims of bias like the present are deserving of the strongest possible censure.’

[53] In Sepheka v Du Point Pioneer (Pty) Ltd,[10] the Court threw caution as follows in respect of allegations of bias:

‘Any allegation of bias, especially on the part of a Judge of this Court, must be substantiated by a proper factual basis, must not be based on mere speculation and conjecture, and must be proved by the party alleging bias.’

[54] It is a trite principle of law that in order to succeed with a claim of bias, more than mere conjecture must be shown. It happens under the normal cause of events that litigants could harbour a sense of apprehension against those administering justice. This of course does not mean that anytime a litigant is not happy with the proceedings or that the judgment or outcome is not in that party’s favour, that a claim of bias would suffice.

[55] The Courts have time and time again warned against litigants making unfounded allegations of bias on the part of presiding officers tasked to decide disputes, without cogent proof to substantiate the allegation.[11] It is a natural result of adversary litigation that one party would be successful and that the other party would fail. The mere fact that the outcome went in favour of the other party, does not render the presiding officer or decision-maker biased. More is required.

[56] In casu, the Applicant claims that the arbitrator was biased. To succeed with this ground for review, the Applicant has to prove bias and she has to substantiate her claim by a proper factual basis. This allegation is not supported by the transcribed record of the proceedings, nor is it in any sense substantiated by factual averments. It is no more than an unsubstantiated, sweeping statement, as is the case with many averments in the Applicant’s founding affidavit.

The record

[57] Rule 7A (3) provides that the arbitrator and the CCMA or bargaining council must timeously comply with the direction, as set out in an applicant’s notice of motion, which will call on them to dispatch, within 10 days after receipt of the notice of motion, the record of the proceedings sought to be corrected or set aside, together with such reasons as are required by law or desirable to provide, and to notify the applicant that it has been done.

[58] If the record is not dispatched within the required time period, the applicant or any other interested party may file an application to compel in terms of Rule 7A(4).

[59] The keeping of a record of the arbitration proceedings is not only practical and required by the CCMA Rules but is also necessary as it provides objective material about what transpired at the arbitration proceedings, which assists the court in the proper exercise of its review powers. As a general rule, it will always be necessary to have the record of the arbitration proceedings available to this Court when arbitration awards are reviewed under section 145 of the LRA.

[60] In instances where the record is lost or inaudible, the first step for the applicant is to assess whether the entire recording or only a portion of it is lost or inaudible. This is necessary and of relevance because Rule 7A(5) requires of an applicant to make available copies of such portions of the record as may be necessary for the purposes of the review. Where the issue on review is limited or on a point of law only, the entire transcript of the proceedings may not be necessary for purposes of the review. The applicant should assess its grounds for review and consider whether the available portion of the record is sufficient to proceed with the review and whether this Court would be in a position to consider and determine the review on such a limited portion of the record.

[61] The Constitutional Court and the LAC confirmed that the Court is not precluded from determining a matter on less than a complete record in appropriate cases where the matter can be decided on the material before Court. Where the interests of justice demand it, a pragmatic approach is appropriate despite the inadequacies of the record.[12]

[62] Where the entire recording is lost or where the entire recording (or material portions thereof) is inaudible and it has been established that the record is necessary for the Court to decide the review application, the parties should attempt to reconstruct the record.

[63] The review Court must consider the totality of the evidence and decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make, based on the evidence that was adduced.[13]

[64] If the Labour Court is not placed in possession of necessary portions of the record, the question arises whether the Court should, in the absence of the record, dismiss the review, grant the review for want of record or undertake the determination of the review on the material available.[14]

[65] Although it is the duty of the applicant in a review application to furnish the other parties and the Registrar with a copy of the record necessary for purposes of the review, there is a distinction to be drawn between a scenario where the record is available, yet the applicant did nothing to have it transcribed and filed and a scenario where the applicant made serious attempts to file the record, but cannot do so because the record either does not exist or is not made available.

[66] In Department of Transport, North West Province v Sebotha No and others,[15] the Court, considering the test to be applied in an application for review, held that in the absence of a proper record, it is unable to determine whether or not there is a basis for the criticism against the commissioner’s findings and said that:

‘[17]  In order to apply the above test the court needs to have before it the record of the arbitration proceedings. As a general rule the complete record of everything that transpired during the arbitration proceedings needs to be placed before the court…

[18] The responsibility to ensure that a proper and complete record is placed before the court rests with the applicant. Failure to place before the court a complete record by the applicant could result in the dismissal of the review application on that ground alone.’

[67] In Fountas v Brolaz Projects (Pty) Ltd and others[16] (Fountas), the LAC was faced with an appeal where the Labour Court dealt with a review application, despite the absence of relevant portions of the record and held that:

‘[31]  In my view there can be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in this matter when there was material evidence missing in the record. What the Court a quo was required to have done was to consider whether the first respondent as the applicant in the review application had taken all reasonable steps to search for such evidence and or to reconstruct the record. If the first respondent had taken all reasonable steps to either find the missing evidence or to reconstruct the record and these had been to no avail, it could then have had to deal with the question of what should be done. If, however, it was of the view that the first respondent had not taken all reasonable steps that it could and should have taken, it would have had to choose one of two options.

[32] The one would be to dismiss the application on the basis that the first respondent had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the Court a quo could have taken lightly because it would have shut the door in the face of the first respondent who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case. 

[33] The other option that the Court a quo could take would have been to postpone the review application or to strike it off the roll to enable the first respondent or all parties to take such steps as might not have been taken earlier to search for the missing evidence or to reconstruct the record. The latter option is one that a Court will usually adopt unless it is dealing with a case where considerations of fair play between the parties, finality of litigation and others demand that the application be dismissed without the consideration of the merits. This would occur where, for example, the matter had dragged on for a long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to do so.’

[68] In casu, the Applicant filed an incomplete record and was made aware of the fact that the transcribed record was incomplete as far back as September 2020 when the State Attorney addressed a letter to the Applicant’s attorneys, stating that the record was incomplete.

[69] The Applicant has not taken any steps to ensure that the complete record of the arbitration proceedings was indeed filed and placed before this Court. The Applicant’s version is also not that the record was missing or inaudible or that an attempt to reconstruct the missing parts thereof was futile. It appears as if the Applicant just did not care to ensure that the complete record is filed.

[70] Mr Ramalekana further submitted that the Applicant was proceeding with the review application notwithstanding the incomplete state of the transcribed record.

[71] In my view, this is a case where the Applicant had not taken any, let alone all, reasonable steps to ensure that the complete record is placed before this Court. As the LAC has held in Fountas, this Court has to choose one of two options. The one would be to dismiss the application on the basis that the Applicant had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is a decision that the Court may take in an appropriate case. The other is to postpone the review application or to strike it off the roll to enable the Applicant to take such steps as might not have been taken earlier to search for the missing record or to reconstruct the record.

[72] I am not inclined to postpone the matter for the Applicant to take steps to search for the missing record or to reconstruct the record. The purpose of the LRA is inter alia the effective resolution of labour disputes and the processes introduced by the LRA are intended to bring about the expeditious resolution of labour disputes. The detrimental implications of delays are obvious.[17] This Court has accepted that a review application is by its nature an urgent application and that it requires prosecution with diligence and urgency.[18]

[73] The Applicant was made aware in September 2020 that the record was incomplete and nothing was done about it. In Court, her attorney did not ask for an opportunity to file the missing portions of the record but submitted that the Applicant was proceeding with the review application, notwithstanding the incomplete record. There is obviously an inherent risk in adopting such an approach.

[74] The other option is to be adopted where the Court is dealing with a case where considerations of fair play between the parties, finality of litigation and others demand that the application be dismissed without the consideration of the merits. This would occur where, for example, the matter had dragged on for a long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to do so.

[75] In casu, the Applicant’s dismissal dates back to March 2017, she had ample opportunity to file a complete record and the Respondents are entitled to finality, all factors which indicate that this is a case that should be dismissed without a consideration of the merits.

[76] However, as the Applicant indicated that she wants the case to be decided on the record as it is, I will consider the grounds for review.

[77] In argument, Mr Ramalekana submitted that the Applicant persisted with three grounds for review on which the review application is to be decided.

 

Hearsay evidence

[78] Mr Ramalekana’s submissions on the first and second grounds for review persisted with show that the two grounds for review both relate to the issue of hearsay evidence and the gist of the Applicant’s case is that the arbitrator allowed hearsay evidence, which was inadmissible.

[79] The Applicant’s case is that the Respondent failed to call a key witness, Mr Gatama, and as such, the evidence of all the other witnesses who testified, falls squarely within the ambit of inadmissible hearsay evidence, as their evidence was not corroborated by Mr Gatama. The arbitrator should have drawn a negative inference from the fact that a necessary witness was not called. The evidence that was adduced on behalf of the Respondent was hearsay evidence and the arbitrator should not have attached any weight to it or placed any reliance for her finding on such evidence.

[80] It is evident from the transcribed record that when the proceedings commenced, Mr Mbau, who represented the Respondent, indicated that Mr Gatama was out of the country at that stage and that other witnesses would testify on relevant issues. Whether the issue of Mr Gatama’s whereabouts was raised again at some point during the arbitration proceedings, is unknown as this Court does not have the complete transcript of the proceedings. From the record that is available, it is evident that there was a reason tendered as to why Mr Gatama was not present to testify.

[81] Hearsay evidence is defined[19] as evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence.

[82] In terms of section 3(1) of the Law of Evidence Amendment Act,[20] hearsay evidence shall not be admitted as evidence unless the parties agreed to the admission thereof as evidence, or the person upon whose credibility the probative value of such evidence depends, testifies at the proceedings or where the evidence is admitted in the interest of justice, having regard to seven specified factors.

[83] The Respondent called five witnesses. It is evident that the testimony adduced by the witnesses comprised of documentary evidence, direct evidence and hearsay evidence. The evidence adduced by the Respondent was only in part hearsay evidence.

[84] One of the primary duties of the arbitrator was to consider the evidence holistically. The arbitrator found the Respondent’s witnesses to be satisfactory in all respects and rejected the Applicant’s evidence as it was weak and showed an attempt to extricate herself from the misconduct. The arbitrator found that the evidence of Captain Nkuna corroborated that of Colonel Maile, who were both present when the entrapment happened. They testified that Mr Gatama identified the Applicant as the person who was with Captain Makwela at the restaurant, Colonel Maile and Captain Nkuna testified as to what they had observed and heard and Captain Nkuna had taken the Applicant’s statement. In cross-examination, the factual content of the statement was not disputed, but the questions focused on technical issues.

[85] Even if the missing link in the Respondent’s evidence is Mr Gatama and had he been called, the issue of hearsay evidence would not have arisen in the first place, the reality is that the arbitrator was obliged to deal with the evidence before her, whether it was documentary, direct, hearsay or circumstantial evidence and she had to assess and evaluate the evidence accordingly.

[86] It is evident that the arbitrator, in assessing the evidence, was aware of the fact that the weight of hearsay evidence can be enhanced by the production of other evidence that corroborates the hearsay. In casu, there was also documentary and direct evidence adduced, and the arbitrator dealt with the evidence adduced. The arbitrator considered all the evidence presented together and she had regard to the totality of evidence, including circumstantial evidence placed before her and through which the Respondent sought to prove its case.

[87] Once all the evidence was presented, the arbitrator was duty bound to evaluate all the evidence together and to determine the facts of the case, she had to evaluate from the totality of the evidence which relevant facts have been admitted or proved and what inferences could be drawn from these facts. She had to evaluate whether the Respondent had sufficiently proved its case and whether its version was the more probable one or not.

[88] Circumstantial evidence is permissible. In assessing circumstantial evidence, the arbitrator should consider the cumulative effect of all the evidence as the value of circumstantial evidence does not lie in each individual piece, but in the combination of all the pieces of evidence, viewed together. The arbitrator should consider the cumulative effect of all the evidence and weigh it on a balance of probabilities.

[89] In Komape v Spoornet (Pty) Ltd and others,[21] the Labour Court held in respect of circumstantial evidence that:

‘[28]  In assessing circumstantial evidence the arbitrator should always consider the cumulative effect of all the items of the evidence before him or her. In this regard the commissioner should look at the totality of the evidence and weigh it on a balance of probabilities…[22] The inference must be drawn through a careful survey of the connection between the facts and their relationship to the offence alleged to have been committed by the employee. To this extent the court in Smit v Arthur 1976 (3) SA 378 (A), when dealing with circumstantial evidence held:

'All the relevant facts must necessarily go into the melting pot and the essence must finally be extracted therefrom.'

…

[30] The onus in civil cases is discharged if the inference advanced is the most readily apparent and acceptable from a number of other possible inferences…’

[90] The Respondent presented direct evidence of an eyewitness, documentary evidence and circumstantial and hearsay evidence in support of its case. Evidently, the cumulative effect of all the evidence is that, on a balance of probabilities and considering the evidence holistically and cumulatively, the Respondent’s version is the more probable one.

[91] The arbitrator ultimately found that the Applicant could not offer any explanation as to why, when she was based at Giyani, she was present at the office of Mr Gatama, where the bribe was paid, with Captain Makwela, who solicited the bribe, and who happened to be her husband and an imposter. Considering the evidence holistically, there was no probable reason for the Applicant to be present at Mr Gatama’s premises and the arbitrator’s findings in this regard are reasonable.

[92] The correct test to be applied is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. Applying this test, there is no merit in the aforesaid grounds for review.

[93] The third ground for review is that the arbitrator allowed evidence that was obtained from an unauthorised trap, where the procedure was not followed. The Applicant’s case is that the trap was not authorised, therefore the evidence was not properly obtained and it should not have been admitted.

[94] There is no merit in this ground for review. The Respondent’s witnesses testified as to the procedure that was followed and that the entrapment operation was indeed authorised. The Applicant raised rather technical issues, which did not address the question of whether the entrapment was properly authorised in the first place. Sight should not be lost of the fact that an arbitration considering the fairness of an employee’s dismissal is not akin to a criminal court deciding an accused person’s guilt or innocence.

[95] This ground for review is not supported by the evidence as it appears from the transcribed record.

Conclusion

[96] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The ultimate question is whether, holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her.

[97] I must ascertain whether the arbitrator considered the principal issue before her, evaluated the facts presented and came to a conclusion that is reasonable. I have considered this question after perusal of the transcribed record, the arbitration award and the grounds for review raised by the Applicant.

[98] Considering the evidence before the arbitrator holistically, the arbitrator’s findings are not disconnected from the evidence and fall within a band of reasonableness based on the evidence that was placed before him.

[99] There is no basis for this Court to interfere with the award on review and it follows that this application fails.

Costs

[100] 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.

[101] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[102] Ms Kekana for the Respondent submitted that a cost order should be awarded in favour of the Respondent as the Applicant came to Court with a meritless application.

[103] In Zungu v Premier of the Province of KwaZulu-Natal and Others,[23] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[104] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The generally accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others,[24] it was emphasized that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[105] In my view, this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success.

[106] I am alive to the fact that the Applicant is an individual. This Court is ordinarily reluctant to make orders for costs against individual employees, for whom the prospect of an adverse costs order may serve to inhibit the exercise of what they perceive as their rights. This is not an immutable rule.

[107] In casu, the Applicant approached this Court on review and failed to ensure that a complete record is filed, notwithstanding her duty to do so. She raised grounds for review which are rather grounds for appeal and the grounds for review she persisted with, had no merit, considering the applicable legal principles.

[108] Fairness dictates that the Respondent, and in effect, the taxpayers of this Country, cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in before approaching this Court. It seems to me that in the present circumstances, the interests of justice require that the Applicant pays at least a portion of the Respondent’s costs. In my view, a sum equivalent to 20% of the Respondent’s costs will best serve those interests.

[109] In the premises, I make the following order:

Order

1. The review application is dismissed;

2. The Applicant is to pay the costs of the application, limited to 20% of the First to the Third Respondents’ taxed costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

 

Appearances:

For the Applicant:

Mr T Ramalekana from Ramalekana Inc Attorneys

For the First to Third Respondents:

Advocate N Kekana

Instructed by:

The State Attorney, Johannesburg

---

---