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IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

                                                                                                Not Reportable

                                                                                                Case no: C746/2018

In the matter between:

MASANDE DONULD MNGINI                                                        Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL- WC                                                         First Respondent

COMMISSIONER NEDZAMBA N.O.                                                Second Respondent

CITY OF CAPE TOWN                                                                     Third Respondent

Date heard: 18 March 2021 on the papers

Delivered:  17 June 2021 by means of email

JUDGMENT

RABKIN-NAICKER J

[1]     This is an opposed application to review an Award under case number WCM121706. In terms of the Award, the second respondent (the Arbitrator) found that the applicant’s dismissal was substantively fair.

[2]     The applicant was dismissed on the 9 of November 2017, and was employed as a Law Enforcement Officer. The Award records the charges against him as follows:

          “Charge 1

          It is alleged that on or about 2 April 2017, at about 00.30 you committed an act of gross misconduct, namely desertion, when you left your posting at Epping Market VOC with City vehicle CCT32473, never to return to complete your shift. (sic)

          Charge 2

          It is alleged that on or about 2 April 2017 from about 00.30 you mis-used council vehicle CCT32473, by going on a frolic with said vehicle, with the necessary authority or permission to do so. (sic)

Charge 3

          It is alleged that on or about 2 April you were grossly dishonest when you use the driver’s tag of another officer, namely K Bailey, to use council vehicle CCT32473 for personal purpose and not for work related issues.

[3]     It was common cause at the arbitration that the applicant did leave his posting and drove the third respondent’s (the City) vehicle for personal purposes and used his colleagues tag. By using the tag, it appeared on the vehicle tracking report that his colleague was using the vehicle. However, the applicant denied he was on a frolic and that he had been dishonest. The Arbitrator found him guilty of the second and third charges on the evidence before him.

[4]     Having heard the testimony of all the witnesses, including the applicant and his wife, the Arbitrator made the following material findings:

“64. As for Charge 2, the applicant was charged with having misused the respondent’s vehicle without authority. The applicant did not dispute he used the vehicle for private purposes. In fact, Swart submitted during her opening statement that the applicant did not dispute that he misused the vehicle. It is also common cause that the applicant drove around Khayelitsha. Although it was originally submitted on behalf of the applicant that he had authority from Bailey, evidence shows that Bailey did not permit the applicant to use the vehicle to travel to Khayelitsha. When the applicant requested for a vehicle, he did not state that he wanted to use the vehicle for private purposes. In any event, evidence reveals that Bailey had no authority to permit the applicant to drive the vehicle for private purposes I find that the applicant had no authority to drive the vehicle.

            65.       In my view, the fact that the applicant admitted to having misused the City’s vehicle without authority is sufficient to find the applicant guilty of charge 2. His reason for using the vehicle, to my mind, is only relevant to mitigate the misconduct for the purposes of determining the appropriate sanction. I have nevertheless considered his argument that he did not drive the vehicle to frolic. The word frolic suggests that he used the vehicle playfully or he drove it to have fun. Although it is common cause that the applicant drove the vehicle around in Khayelitsha, the applicant’s explanation is that he did so because he received a call from his wife to join her in Khayelitsha where she had taken their sick child to be treated by a traditional healer.    

66.       I am confronted with two conflicting versions; Myeko’s version is that he was at all times with the applicant and that the applicant did not receive any call. The applicant’s version is that he received a call while he was tying his shoe laces. Having due regard to the credibility of the witnesses before me, I find it more probable that Myeko’s evidence is the correct one for the following reasons. There is no evidence to suggest that Myeko holds any grudges or ulterior motives against the applicant. In fact, evidence shows that he had a good relationship with the applicant to the point that they would discuss the applicant’s marital problems. To my mind, if the applicant could discuss his marital problems, which in my view is a sensitive matter, he would not have had difficulty in telling Myeko that he had received and emergency call. To my mind the applicant did not have to disclose that he was taking the child to a traditional doctor; it would have been sufficient to simply tell Myeko or Bailey that he had received an emergency call and that he had to leave. Instead, the applicant waited for Bailey to arrive, he then, on more than one occasion, asked Bailey to give him a vehicle. This, together with the undisputed evidence that the applicant’s demeanor was normal and that he was not in a frantic state make it unlikely that he had received any emergency call from his wife.   

67.       In any event Myeko’s undisputed evidence that he and the applicant previously discussed their mutual belief in the practice of traditional healing, makes it more probable that the applicant would have told Myeko that he had received an emergency call and that he needed to take his child to a traditional healer.

68.       I find the applicant’s version problematic. In the first place, the applicant does not explain why he had to get out of the car to tie his boots. Even if he did, he does not explain how he would answer a phone call while at the same time tying his boots. He did not explain why he did not request his phone records from his cell phone service provider. He could have done so immediately when he was accused of deserting his post. In my view, this was a fundamental evidence one would expect an innocent person to produce to defend himself when faced with the allegations.

69.       Moreover, both he and his wife had cell phones at the time that the charges were levelled against the applicant. All that it would have taken was to produce cell phone records from their cell phones. Conveniently, they have now lost their cell phones; even if they have lost their phones, there is no explanation why they did not draw up their cell phone records from their service providers. I accordingly find it more probable that the applicant never received a call from his wife.

70.       Furthermore, it was submitted on behalf of the applicant the vehicle tracking report is not disputed. The applicant and his wife’s evidence are not consistent with the vehicle tracking report. The report shows that the applicant drove the vehicle from Epping and his first stop was at Tetyana and Siyaya Street at 00:49. This is contradicting the applicant’s evidence that he first stopped at Sihawu Street near the police station make a call to his wife for direction. If he did not stop at Sihawu Street to get the direction, then his wife’s evidence that she contacted him while he was near the police station was a fabrication in attempt to corroborate his version. I find it unlikely that his wife had anything to do with his trip to Siyaya and Tetyana Crescent.

71.       The vehicle tracking report reveals that the applicant arrived at Tetyana and Siyaya crescent at 00:49, ten minutes later at 00:59 he drove but only to stop three minutes later at 01:02 at the same street. 14 minutes later at 01:16 the applicant then drove to Mongesi Street and spent 12 minutes before proceeding to Nkonyana and ultimately arrived at Sihawu and Tsotsa Street at 01:47 to spend 1h29 minutes. The only explanation for these trips come in the form of internal contradiction between applicant and his wife’s evidence; he testified that his wife had sent him to the shop to get food while the wife’s evidence is that the applicant followed her to the traditional healer’s place to get medical equipment. According to her, they stopped to get her mother food because she is diabetic. Her version does not find support in the vehicle tracking report. As already indicated above, the applicant made too many unexplained stops. There is no explanation why the applicant drove around, stopped and spent time at those different addresses. To my mind. The applicant’s driving around and the time spent at the different stops is not consistent with his version that he was driving behind his wife with a sick child. To the contrary, his driving is consistent with the respondent’s allegation that the applicant drove in a frolic.  

72.       The applicant’s wife’s evidence is suspect, she is married to the applicant and she stands to gain financially if he is reinstated. At first the applicant did not want to call his wife because he feared that she may face questions he was not comfortable with. It is only after I warned him of the negative inference had he failed to call her. Evidence shows that she was not so far from the arbitration venue. The applicant found some inexplicable reasons not to call her the same day. I agree with Petersen that his motive was to prepare and coach her to corroborate his version. It is evident when comparing their evidence insofar as it relates to the phone call that her evidence was coached and rehearsed in attempted to corroborate the applicant’s version. Unfortunately, it was not possible for her to reconcile her version with the vehicle tracking report.

73.       While I recognise that the applicant’s child was indeed sick, I am not persuaded that her sickness was the reason the applicant left his post and drove around in Khayelitsha. It is unfortunate that he would use the reality of his child’s sickness as a cover up for his misconduct.

74.       I accordingly find that the balance of probability favours the respondent’s version that the applicant was correctly found guilty of charge two.

75.       The last charge required the respondent to prove that the applicant was grossly dishonest when he used Bailey’s tag to drive for personal purposes. It is common cause that the applicant used Bailey’s tag. His explanation for using the tag is that he mistakenly took Bailey’s tag because they looked similar. He did so without disputing Bailey’s evidence that his tag was broken and therefore smaller than Bailey’s. Even if it where to be accepted that he mistook Bailey’s tag for his, his evidence shows that the vehicle was switched on and off for at least eight times, it is therefore unlikely that he would make the same mistake eight times. Probabilities are that he knew that the tag he was using was Bailey’s.

76.       Furthermore, it is inexplicable that he chose to drive Bailey’s vehicle while he was issued with his own vehicle. There is no evidence that the Aveo had started giving problems. The most likely reason is that he intended to hide from the respondent that he was the one driving around in Khayelitsha. This together with his unauthorised use of Bailey’s tag makes him guilty of dishonesty and the fact that Bailey would have been charged with the misuse while it was in fact the applicant, aggravates the dishonesty. I find that the respondent has proven that the applicant was grossly dishonest.  

[5]     The applicant’s grounds of review include that the Commissioner did not consider that he was confused and panicking about his child’s illness and that his taking of the tag took place during the emergency he was facing. The Commissioner, it is submitted, also did not consider that a final written warning against the applicant had lapsed some 24 months earlier and it should not have been taken into account by him.

[6]     In fact the Commissioner took account the issue of the child’s illness and carefully weighed up the evidence before him. He clearly did not find the evidence of the applicant and his wife to be credible as set out above in his Award. The Commissioner also referred to LAC jurisprudence supporting his right to take into account the cumulative effect of previous acts of misconduct by an employee.

[7]     As the LAC stated in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others^[1], a review court must ask the following questions:

          “[20]…. (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process   that the arbitrator employ give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he or she was required to arbitrate? (This may in certain cases only become clear after both parties have led their evidence.)   (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? (v) Is the arbitrator's decision one that another decision maker could reasonably have arrived at based on the evidence?” 

[8]     Having considered the record of the Arbitration before the Commissioner, the above questions must be answered in the affirmative. In addition, the Commissioner made credibility findings adverse to the applicant and his wife. The Commissioner was undoubtedly in a better position to make such findings than a Court adjudicating motion proceedings.^[2] These findings also accorded with the content of the evidence before him.

[9]     In all the above circumstances, I am of the view that the Award is not susceptible to review. I make the following Order:

          Order

1.    The application to review the Award under case number WCM121706 is dismissed.

2.    There is no order as to costs.

                                                                                                             _________________

                                                                                                            H.Rabkin-Naicker

                                                                                                  Judge of the Labour Court

Representation on the papers

Applicant: Legal Aid- SA

Third Respondent: Timothy & Timothy Attorneys

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