IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR 2104/08
In the matter between:
K  J  MARTINS 							             Applicant
and
PRAKASH ROOPA N.O.						     1st Respondent

SAFETY AND SECURITY BARGAINING
COUNCIL							    	   2nd   Respondent

SOUTH AFRICAN POLICE SERVICE       		   	     3nd  Respondent

JUDGMENT

LAGRANGE,J

Introduction

1.	The following order in this matter was handed down on 10 August 2010:

1.1.	The review application is dismissed.

1.2.	No order is made as to costs

2.	The reasons for the judgment are set out below.
3.	This applicant seeks to set aside a ruling and award issued  by the second respondent (‘the arbitrator’) handed down on 7 July 2008 and 9 July 2008 respectively.  The ruling concerned an in limine objection to the arbitration proceedings proceeding. The award upheld the dismissal of the applicant for various acts of misconduct linked to the events of the night of 7 October 2005.
4.	 The application was set down for hearing on 11 February 2010, even though the record of the arbitration proceedings was incomplete. Although a transcript of the arbitration proceedings had been filed, the bundle of documents used in the arbitration proceedings had not been filed with the court. At the hearing of the matter it was agreed that the parties would endeavour to file the missing documents they relied on with the court. This was done on 2 March 2010, when photographs taken at the scene of the central incident leading to the applicant’s dismissal were filed together with a psycholegal report relied on by the applicant, completed by Mr L P Direko a psychologist.  However, no documentation was provided concerning the applicant’s original suspension and the course of the original disciplinary proceedings, and accordingly the record for reviewing the in limine ruling is limited to what can be gleaned from the transcript and uncontested allegations and submissions of the parties.

Background

5.	A summary account  of the material events is related below. At the time of all these events, the applicant was a captain and the acting station commander at Mothibastad police station. 
6.	The applicant was suspended without pay on 16 November 2005 under Regulation 13(2). According to the arbitrator’s in limine ruling her suspension notice stated she was suspended for alleged misconduct committed in contravention of Regulation 20 (z) in that “on or about 2005-10-08 at about 02h00 and at/near Magojaneng village you allegedly committed a common law offence: to wit malicious damage to property by setting fire and damaging property Mothibastad CAS 24/10/2005: no 0490808-2 Captain K J Martin: Mothibastad CAS 24/10/2005”. 
7.	The property damaged was that of Ms Mocwakadikgwa.  Ms Motswakadikga was a teacher at the same school as the applicant’s spouse. On the night in question when the applicant arrived at Motswakadikga’s house in the small hours of the morning of 8 October she found her husband committing adultery with Ms Motswakadikga.  
8.	It is common cause that the applicant was enraged and proceeded to attempt to destroy some of Ms Motswakadikga’s property, including setting light to some of it. However, part of the applicant’s defence was that she could not remember what happened at the house after she had confronted her husband’s lover.  
9.	The applicant’s account of how it happened that she came to be at the house in question was that she was on her way to visit one of the other stations in the area as part of her duties as acting station commander. She was using the station commander’s vehicle for this purpose and had recorded this on a form.
10.	The applicant was on her way to the police station at Batlhoras which required her to pass the village of Magojaneng. As she was passing she said she noticed her private car standing outside the house and went to investigate because her husband sometimes lent the vehicle to third parties. She knocked on the door and finding it open walked in to the surprise of her husband his lover. On her account this was a completely chance encounter.
11.	Ms Motswakadikga testified that there had been a previous occasion when the applicant had confronted her on the phone and told her to leave her husband alone or she would shoot Motswakadikga. She claimed that it was impossible for the applicant to have seen the parked car on her property from the main road between Mothibistad and Batlharos.
12.	After the incident, applicant returned to the police station she made certain entries in the occurrence book, which became the basis of the third charge against her.
13.	Motswakadikga also went to the police station to lay a complaint against the applicant only to find the applicant there. According to Motswakadikga the applicant again confronted her and on the advice of other police she left the premises. The applicant likewise said she could not recall this incident. 
14.	The essence of the applicant’s defence to the main charge of malicious damage was that she could not be held responsible for her actions as she did not have the necessary intent to do what she had done.
15.	Apart from saying that she had no personal memory of events at Motswakadikga’s house and of the second interaction with Motswakadikga at the police station, the applicant relied on the evidence and report of Mr Direko, a psychologist who conducted a clinical assessment of the applicant on 27 January 2006. He testified that the purpose of the test was to try and determine if her actions on the evening in question could have been committed as a response to post-traumatic stress. It was not for the purpose of testing if the applicant was suffering amnesia.
16.	Direko produced a written report. He describes her loss of ‘concentration’ and ‘composure’ after finding her husband with Motswakadikga, as part of the symptoms of post-traumatic stress disorder. He elaborated: “It meant the death of her marriage. It is like a crime of passion where one loses temper and even memory.”
17.	He concluded his report as follows:
“The incident of 8th October occurred while she was on duty unfortunately. Yet her reaction to stress and trauma was normal. At least the majority of people confronted with a stressful situation would react in a similar way especially where and adulterous spouse was caught in an adulterous trap. Her reaction was normal.” 
18.	The applicant’s disciplinary enquiry commenced on 19 December 2005. According to the undisputed allegation by the applicant, disciplinary proceedings were not completed within 60 days of her suspension without pay. It would appear from the record that the proceedings were finalised when the applicant was found guilty of the charges on10 February and dismissed on 15 February 2006. 
19.	The applicant faced three charges and was found guilty on all three. The second charge was essentially the one mentioned at the time of her suspension. In summary these were - 
19.1.	a charge of malicious damage of the property of Ms Motswakadikga;
19.2.	a charge that the applicant had used a state vehicle without permission in going to Ms Motswakadikga’s house, and
19.3.	a final charge alleging that after she returned to the police station she made three false entries in the occurrence book.

The Arbitration Award 

20.	The arbitrator issued a detailed award, in which he summarised and analysed the evidence of the witnesses. 
21.	The arbitrator rejected the applicant’s account that her discovery of her husband at confrontation of Motswakadikga with her husband was a mere chance event. Firstly he questioned why the applicant would have gone to visit Batlhoras station at such a late hour as little could be achieved by a visit at that time. It should be mentioned at this point that the applicant had said the reason she was on her way to Batlhoras station at the small hours of Sunday morning was that she had been unable to visit the other stations during the week and had decided to do so over the weekend. Likewise, if she was knocking off as she claimed, why did she go back to Mothibistad station or not continue to Batlhoras station as intended? The applicant’s spouse and Motswakadikga had attended the matric farewell party that evening and the applicant has already warned Motswakadikga to leave her husband alone. The arbitrator accepted Motswakadikga’s evidence that the vehicle could not have been seen from the main road as the applicant alleged.
22.	On the destruction of the Motswakadikga’s property the arbitrator found the applicant had gone about it methodically and had alleged that it was property her husband had bought for Motswakadikga. She was also seen leaving the scene with a bag containing some of the items by Mr Sigano, a SAPS inspector at Mothibistad station who had gone to the scene after Mr Martins had reported the incident. The arbitrator found this to be a clear indication that she distinguished between items she wanted to destroy and those she did not. He also found it significant that Sigano testified that on his return to the station the applicant had questioned why he had gone to the scene because the things she had destroyed were items purchased by her husband for Motswakadikga.
23.	The arbitrator took account of Mr Direko’s evidence. The import of his evidence was not that the applicant could not have been aware of her actions at the time of the incident, but that her reaction to the situation was normal and that it was possible she suffered a memory blackout after the event.  His evidence also did not suggest the applicant could no longer distinguish between right and wrong but that she lost her temper.
24.	In respect of the charge of unauthorised use of the vehicle, the arbitrator appears to have accepted the evidence of Mr Sigano that the applicant had not booked out the vehicle she used that night and did not have the necessary authorisation to use the vehicle. 
25.	The findings of the arbitrator in relation to whether the entries in the occurrence book were false, is difficult to discern from his reasoning, though he clearly was of the view that the entries made by her after the incident were an attempt to ‘cover her tracks’ and to create the impression she was simply doing her work at the time.
26.	In conclusion the arbitrator was satisfied that the applicant was guilty of all three charges and that dismissal was appropriate in the circumstances as “...she was entrusted to protect the property of others, moreso given her seniority with the respondent.” (sic)

The Grounds of Review

27.	The third respondent strenuously attacked the status of the founding application because the applicant did not attest to the founding affidavit. In any event, the applicant did attest to the supplementary affidavit and as the grounds of review are not finalised until the supplementary affidavit is filed, I am reluctant to dismiss her review application on this basis. This is particularly so, because the third respondent did not object to the irregularity of the original notice of motion before waiting for the applicant to file her supplementary affidavit. It did not treat the original application as defective as it might have, but filed a notice of intention to oppose it instead. There is nothing on the record to indicate that the third respondent raised any objection to the deficiency of the original notice of motion which was supported by an unsigned affidavit, until it filed its answering affidavit. 
28.	In any event, the grounds of review stated in the unsigned founding affidavit are effectively reiterated in the applicant’s supplementary affidavit. 
29.	Another point must be mentioned. Although the applicant’s notice of motion only indicates that she seeks to review the the arbitrator’s award of 14 August 2008, in her founding papers and supplementary affidavit she also takes issue with the arbitrator’s in limine ruling. Accordingly, she seeks to attack a ruling without giving notice that she is applying to review it and set it aside. 
30.	In respect of the main award, a number of grounds of review were raised by the applicant. In summary these were:
30.1.	The third respondent succeeded only in establishing that the property of Motswakadikga had been damaged but not that this had been done unlawfully with the necessary intent.
30.2.	There was no evidence led during the arbitration proceedings in relation to the charges of being in unlawful possession of a state vehicle. More particularly, the requirements for driving a state owned vehicle were a driver’s licence and authorisation. The applicant had a licence and had authorisation from Superintendent Moreeng who handed the car to her when she went on leave.
30.3.	Likewise there was no evidence led in the arbitration proceedings to show that the applicant was guilty of making false entries in the occurrence book. On the contrary the three entries made in the occurrence book by the applicant were all correctly recorded as late entries and her failure to mention the incident between herself and Motswakadikga at Magojeng Village was a personal marital matter concerning herself and her husband which ought not to have appeared in the book.
30.4.	The focus of the arbitrator’s award is the charge of malicious damage to Motswakadikga’s property and he fails to deal in his award with the other charges.
30.5.	The arbitrator had no jurisdiction to adjudicate a charge of malicious damage to property. The rationale for this claim is that regulation 13(2) in terms of which the applicant was suspended provides that an employee may only be suspended without pay if the case against her was so strong that it is likely that the employee would be convicted of a crime and the only forum that could reach such a conclusion would be a court hearing a criminal matter. Since no criminal proceedings were brought against the applicant on such a charge, a jurisdictional requirement for the arbitrator considering this charge against her was not met.
30.6.	The applicant’s suspension without pay was procedurally unfair in that the Commissioner of police did not comply with the requirements of the regulations governing precautionary suspension.
30.7.	The arbitrator failed to take account of the applicant’s evidence that she could see the parked car on Motswakadikga’s premises and that he simply preferred Motswakadikga’s evidence on this issue.
 
The applicant’s state of mind at the time of the incident

31.	 The applicant accepts that she was not in a position to dispute the evidence of what she did at Motswakadikga’s house in view of her inability to recall what happened at the time. The issue though is whether her destructive behaviour was done with a proper appreciation of what she did at the time.
32.	The applicant argues that because the charge was framed as a criminal one, it was necessary for the employer to establish all of the elements of the ‘crime’, including unlawfulness and intent.  The applicant argues that neither the unlawfulness of the misconduct nor the necessary intent of the misconduct was established by the employer. Both grounds advanced really go to the question whether she acted intentionally. Firstly, the applicant submits that her actions were provoked by discovering her husband in flagrante delicto and this, presumably, diminished the extent to which she consciously embarked on the destructive action which followed. She also seeks to rely on her alleged state of post traumatic stress disorder to explain that she was unable to restrain herself from engaging in the physical confrontation with Motswakadikga and the destruction of the latter’s property.  As expressed by the learned author St Q Skeen, “...(t)he defence will be successful if the court is satisfied that the accused did not possess the capacity to appreciate the wrongfulness of his or her conduct or to act in accordance with such appreciation.” An accused person’s inability to control their actions owing to temporary non-pathological incapacity has received limited recognition in our criminal law as a mental which negates the possibility of an accused individual having criminal intent. 
33.	The SCA’s confirmed that the test for temporary non-pathological incapacity still has two components: the accused must be unable to distinguish right and wrong or to act in accordance with that appreciation. However, if an accused is able to appreciate right and wrong but acts in an aggressive and focussed goal-directed manner, spurred on by anger or other emotion the defence will not succeed.
34.	In this instance the claim of provocation is closely linked to the claim of mental incapacity. Essentially, it was argued that the provocation of seeing her husband with his lover had induced the traumatic stress which in turn supposedly put the applicant in state of mind that she was unable to appreciate what she was doing. The emphasis of the applicant’s defence was that she was unable to control her actions at the time.
35.	In his assessment of whether the applicant was behaving in an involuntary manner at the time of the incident the arbitrator clearly thought a number of factors were relevant. These were -
35.1.	The applicant had already warned Motswakadikga about her relationship with the applicant’s husband.
35.2.	His finding that the applicant’s visit to Motswakadikga’s house in the small hours of the morning was probably not a chance event occasioned by her sighting the vehicle in the yard.
35.3.	The applicant proceeded methodically to destroy Motswakadikga’s property;
35.4.	The applicant had not simply destroyed all Motswakadikga’s goods but had taken some with her when she left;
35.5.	On returning to the police station the applicant had offered an explanation to Segano why she had felt entitled to destroy the goods.
36.	It cannot be said that the arbitrator was unreasonable in relying on the factors mentioned in order to infer that the applicant’s actions were premeditated and not beyond her control.  There was also other evidence such as the evidence of Segano the applicant was still engaged in burning Motswakadikga’s belongings when he arrived on the scene following the applicant’s husband reporting the matter at the police station.
37.	In any event, I am satisfied that the arbitrator cannot be said to have acted improperly in his evaluation of the evidence.

The arbitrator’s evaluation of the evidence of the visibility of the parked vehicle
 
38.	This ground of review refers to the arbitrator preferring Motswakadikga’s evidence to that of the applicant about the visibility of the parked car from the main road. It was not necessary for him to make a credibility finding in order to choose between the two versions.  Motswakadikga’s house was not on the main road but adjacent to a house on the main road. It was also dark. Moreover, it was not in dispute that the applicant was already aware of a relationship between her husband and Motswakadikga, and therefore might have been interested in confronting Motswakadikga which increases the possibility this was not a chance event. It is evident that this factor was also taken into account in weighing up the probabilities of the applicant chancing to see the car in the small hours of the night parked in a house one house away from the road.  While another arbitrator might have evaluated this piece of evidence differently, the arbitrator’s evaluation is a perfectly plausible assessment of the two versions.

The in limine ruling and the arbitrator’s jurisdiction

39.	As already stated,  this matter was strictly speaking not before the court as the in limine ruling was not mentioned in the notice of motion. Nonetheless, as it is an objection which might vitiate the arbitrator’s award if he lacked jurisdiction to hear the matter, it needs to be considered.  In dealing with this ground of attack the attack based on the alleged unfairness of the applicant’s suspension will also be addressed.
40.	The applicant’s attack on the in limine ruling is substantially an attack on the arbitrator’s jurisdiction to hear the charge relating to malicious damage to property. Procedurally, the applicant takes issue with the failure of the SAPS Commissioner to reconsider her continued suspension without pay, as he was obliged to,  when she made written representations to him on the question of her continued suspension and when the disciplinary enquiry had not been concluded within 60 days of her suspension. 
41.	One difficulty with this ground of review is it does not attack the arbitrator’s reasoning but the fairness of the police Commissioner’s actions in suspending the applicant without pay. Nothing on the evidence suggests that the arbitrator was seized with determining whether the Commissioner had committed an unfair labour practice in the handling of the applicant’s suspension without pay. Accordingly, it appears the arbitrator was not required to deal with this issue. 
42.	In relation to the substantive point, the applicant targets the arbitrator’s in limine ruling. This ruling was to the effect that nothing prevented the third respondent from proceeding with a disciplinary charge against her in respect of the charge of malicious damage to property even though there were no criminal charges pending on the same issue and, correspondingly, there was no impediment to him exercising jurisdiction to arbitrate on the fairness of her dismissal.
43.	The applicant places great reliance on the provisions of regulation 13(2) of the SAPS Disciplinary Regulations of 2005.  The pertinent part of that regulation reads:

“13 Precautionary Suspension
...
13 (2) The National or Provincial Commissioner may suspend the employee without remuneration, if the Commissioner on reasonable grounds is satisfied that the misconduct which the employee is alleged to have committed, is misconduct as described in Annexure A and that the case against the employee is so strong it is likely that the employee will be convicted of a crime and dismissed. Provided that - ....”

44.	The jurisdictional challenge based on this provision is two-pronged.  Firstly, the applicant contends that the charge of malicious damage to property is a criminal matter and in the absence of criminal charges being brought by the Commissioner he was not entitled to invoke regulation 13(2) and suspend her without pay. This is an attack on her suspension and because that issue was not before the arbitrator, it does not fall to be considered here. The second argument made by the applicant is that only a criminal court could consider the charge of malicious damage to property and accordingly, neither the disciplinary chairperson nor the arbitrator had the necessary authority to consider the matter.

45.	Clause 20(z) of the SAPS Disciplinary Code includes in the definition of misconduct the commission of any common law or statutory offence. The provision reads “An employee will be guilty of misconduct if he or she among other things - …(z)  commits any common law or statutory offence”  (emphasis added). The apparent intended effect of this provision is that if an employee is found guilty of a criminal offence, that will be deemed an act of misconduct. By this device, the need to canvass  the same evidence in disciplinary proceedings, which was covered by the criminal proceedings, in order to prove that  misconduct has been committed, is avoided. 

46.	However, I do not read clause 20 to mean that the only way in which conduct of a criminal character can be dealt with in a disciplinary hearing is if criminal proceedings against the employee have been successfully prosecuted. It is important to note that the list of acts of misconduct in clause 20 is not a closed list, but is qualified by the prefatory phrase which is emphasised in the extract above. By stating that misconduct includes ‘among other things’ the commission of a criminal offence, the clause does not exclude the possibility of an employee being charged in disciplinary proceedings with theft, for example, without the employer relying on the existence of a criminal conviction of the employee in respect of that theft.  In such a case, where the employer does not rely on clause 20(z), the chairperson of the disciplinary enquiry would have to determine if there was sufficient evidence to establish that the employee had committed theft on a balance of probabilities.
47.	Accordingly, just because the misconduct was framed using terms similar to a criminal charge does not mean it could only be dealt with in criminal proceedings. It remains a charge of misconduct to be established in the ordinary way. Consequently, I do not agree that the arbitrator lacked jurisdiction to entertain the charge of malicious damage to property as a disciplinary matter.  
48.	Regarding the challenge to the fairness of her suspension by the Commissioner, it was based on the fact that no criminal charge had been laid against the applicant for malicious damage to Motswakadikga’s property and therefore the Commissioner could not have been satisfied that it was likely she would be convicted of a crime in terms of clause 13(2) of the Code. I do not understand clause 13(2) to be stipulating that it is a pre-requisite for precautionary suspension without pay that criminal charges must be laid against an employee. The use of the concept of the likelihood of a conviction in that provision is used to qualify the strength of the case that the Commissioner must reasonably believe exists against the employee, namely one that is “…so strong it is likely that the employee will be convicted of a crime and dismissed.” In other words, there must be some objective basis for the Commissioner to believe that if the matter was prosecuted the prosecution would be successful and the seriousness of the offence would warrant dismissal. This sets a relatively high standard which the Commissioner must be reasonably satisfied of before imposing a punitive suspension under clause 13(2). 
49.	Be that as it may, on the record before the court, I am not satisfied that the fairness of her suspension was properly before the arbitrator for him to determine.  Consequently, it is not necessary to consider this issue further.

The arbitrator’s consideration of the charges of unauthorised use of a vehicle and falsifying occurrence book entries 

50.	Although the issues raised by the applicant in relation to these charges are expressed more like grounds of appeal than grounds of review, I will consider them on the basis that applicant is attacking the arbitrator’s reasoning in considering the evidence on these charges. In essence, the applicant’s first complaint is that there was no evidentiary basis for the arbitrator finding her guilty of these charges, and if there was any, it exculpated her. 
51.	It is certainly true that the bulk of the evidence concerned the main charge of malicious damage to property, but it is not true there was no evidence led in relation to the other two charges. 
52.	In relation to the unauthorised use of the car, evidence was led by the applicant that the station commander handed over his vehicle to her on 8 October 2005 when she took over as acting station commander. She also testified that she had proof that the vehicle was issued to her using an official form numbered SAP 132b which could be used instead of the occurrence book. It seems the document the applicant might have been referring to was something in the form of a vehicle log book, but this is not apparent from the testimony. On the record it does not seem that this document or a sample of it was produced at the arbitration hearing. It was certainly not part of the bundle of documents before the court.
53.	Inspector Segano maintained that it was necessary to book a vehicle out for use in SAP10, which I understand to be the occurrence book. He could find no record of an entry booking out the official vehicle used by the applicant.  As in the case of the form referred to by the applicant, the occurrence book is not part of the record before the court. It is likely that this was the same occurrence book which contained the ‘late’ entries made by the applicant in the course of the day after the incident took place. It was also suggested that in using the car to go to Motswakadikga’s house, which was not part of her duties, this amounted to unauthorised use of the vehicle. Strictly speaking it was a deviation from the ostensible purposes of the applicant’s journey that morning and might have been construed in those terms, though the seriousness of such limited unauthorised use in this narrow sense would be doubtful.
54.	In relation to the allegedly false entries in the occurrence book, three entries were referred to in the evidence of both the applicant and Inspector Segano. Again, the document they were obviously referring to was not part of the record before the court. This hampers a proper consideration of this ground of review also. All that can be gleaned from the record of oral testimony is that the entries were apparently ‘late’ entries of activities recorded by the applicant the day after the incident. It seems the gist of the allegation against the applicant was that she made these entries to ‘cover her tracks’ for the night before, by trying to suggest she was engaged in her operational duties when the incident in Magojeng Village occurred.  In one entry referred to as 483 it appears the applicant recorded that everything ‘was in order’. When questioned on this, she said this referred to the situation at the police station.
55.	In summary it must be said that there was some evidence led on the two lesser forms of misconduct. However, in the absence of the written documents which the commissioner had before him, it is difficult to assess to what extent it can be said to have been exculpatory on balance. On what I have before me there is insufficient evidence of the record to make a finding on whether the arbitrator’s assessment of the evidence on these charges could not be sustained on any reasonable basis.
56.	It is true the arbitrator did not go into much detail on these charges and focussed on the main charge. However, even if it were true he did not apply his mind to those charges and his findings on those charges were set aside, it appears that he was satisfied that the dismissal was justified principally on the basis of the main charge. This is reflected in his remarks on the question of the appropriate sanction. After concluding the applicant is guilty of all the charges he states “ … and the sanction of dismissal is appropriate in these circumstances as she was entrusted to protect the property of others, moreso given her seniority with the respondent” (sic). This can only be a reference to the main charge of malicious damage to property. 

57.	Accordingly, I am satisfied that the applicant has failed to establish any substantial ground of review for setting aside the arbitrator’s award. 

ROBERT LAGRANGE
JUDGE OF THE LABOUR COURT

Date of hearing : 19 March 2010
Date of judgment: 10 August 2010

Appearances:
For the Applicant:
T Nyandeni
Instructed by Mchunu Koikanyang Inc.

For the Respondent:
K Manyage instructed by the State Attorney