Schouten v Safety and Security Sectoral Bargaining Council (SSSBC) and Others (C44/2022) [2025] ZALCCT 36 (29 May 2025)

THE
LABOUR COURT OF SOUTH AFRICA

HELD
AT CAPE TOWN

Case
no: C44/2022

Not
reportable

In
the matter between:

RICARDO
SCHOUTEN                                  

Applicant

and

SAFETY
& SECURITY SECTORAL              
First Respondent

BARGAINING
COUNCIL (SSSBC)

JANINE
CARELSE N.O.                               

Second Respondent

THE
SOUTH AFRICAN POLICE                   

Third Respondent

SERVICES
(SAPS)

Date
of Hearing: 20 February 2025

Date
of Judgment: 29 May 2025

This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 29 May 2025.

Summary:
(Application to review arbitration
award in unfair dismissal proceedings (misconduct) – finding on
substantive fairness reasonable
– finding on procedural
fairness unreasonable – award partially substituted).

JUDGMENT

LESLIE
AJ

[1] 
This is an application, brought in terms of section 145 of the Labour
Relations Act 66 of 1995 (“the LRA”),
to review and set
aside an arbitration award issued by the second respondent (“the
arbitrator”) under the auspices
of the first respondent (“the
SSSBC”). The application is opposed by the third respondent.

[2] 
The applicant was formerly employed by the third respondent (“SAPS”)
as a relief commander in the Crime Intelligence
unit based at Disa
Court, Bishop Lavis, Western Cape. He was dismissed on 15 December
2017 after being found guilty of being in
unlawful possession of
ammunition. The ammunition was suspected to be stolen property.

[3] 
The relevant facts leading to the applicant’s dismissal may be
summarised as follows:

3.1  The applicant
had a locker (comprising a filing cabinet and stationery cupboard) in
the workplace which was exclusively
for his use. It is common cause
that only the applicant had the key to the locker.

3.2  Mr Johann
Kruger gave evidence on behalf of SAPS. He was the commander of the
Crime Intelligent unit and the applicant’s
superior. He
testified that on 9 May 2017, he was looking for photocopier toner
around the workplace. He asked warrant officer
Fick to assist him.
Fick tried to search the applicant’s locker (who was not
present at the time) but it was locked. He managed
to unlock it with
a knife or a ruler. Upon searching the locker, Fick found boxes of
live ammunition rounds. He drew Kruger’s
attention to this
fact.

3.3 Kruger testified
that, since the applicant was not authorised to be in possession of
this ammunition, he reported it to
management, who advised him to
register a case, so that an investigator could be appointed.

3.4  The appointed
investigator was Nadine Britz, who holds the rank of captain. She
testified that forensic experts were called
on to unpack the
ammunition boxes from the locker, which totalled 1397 rounds.

3.5  Britz testified
that she went to the applicant’s house to take possession of
his firearms. She found additional
ammunition in his safe at home
which he was not licensed to possess. She also found ammunition which
was not properly stored in
a bag in his garage.

[4] 
The applicant’s defence consisted of a denial that any
unlicensed ammunition had been found in his locker or at
his home. He
had not been present when this ammunition was allegedly found.

[5] 
The applicant did not dispute that, in the event that unlicensed
ammunition had indeed been found by Fick and Britz, it
would have
been unlawful – and, by implication, his dismissal would have
been substantively fair.

[6] 
The question before the arbitrator was therefore a straightforward
dispute of fact. Was the ammunition found in the applicant’s

workplace and at his home, as alleged by Kruger and Britz, or was
their evidence fabricated?

[7] 
The arbitrator, who was steeped in the hearing and heard the evidence
of the witnesses first-hand, concluded that there
was no basis on
which to reject the evidence of Kruger and Britz.

[8] 
On review,
the applicant bears an onus to satisfy the Sidumo
(un)reasonableness test,[1]
namely, in light of all the material properly before the arbitrator,
was his finding so unreasonable that no reasonable person
could have
reached it?

[9] 
The
stringency of this test is amplified in a case such as the present
one, which turns on an assessment of conflicting witness
versions.
The reluctance of appellate courts to upset the findings of a trial
judge is based on the fact that the latter has advantages
in seeing
and hearing the witnesses and in being steeped in the atmosphere of
the trial. This reluctance applies both to credibility
findings and
findings based on probabilities.^[2]
These principles apply with equal force where a litigant challenges
an arbitration award on review.

[10] 
In NUM
v CCMA (2013)
34 ILJ 945 (LC)[3], it was held
that a reviewing court: “should
not readily interfere with credibility findings made by CCMA
commissioners, and should do so only if the evidence on the
record
before the court shows that the credibility findings of the
commissioner are entirely at odds with or completely out of
kilter
with the probabilities and all the evidence actually on the record
and considered as a whole.”

[11] 
The applicant has not advanced any arguments capable of satisfying
this stringent test in the present matter. On the
contrary, the
applicant approached the matter as if this application were an
appeal. It is not sufficient to merely rehash arguments
that were
raised (and dismissed) at arbitration. Having regard to the evidence
as a whole, there is no basis on which a reasonable
decision-maker
could not have accepted the evidence of Kruger and Britz over that of
the applicant.

[12] 
The applicant pursued what I understood to be an alternative
argument, namely that the seizure of evidence at his home
had been
conducted under a warrant that had been unlawfully issued. There is
no merit in this submission. Even if the point had
merit (which has
by no means been established) it would have no bearing on the
admissibility of evidence in a disciplinary hearing,
as opposed to
criminal proceedings. It would also have no bearing on the
“admissibility” of the ammunition found in
the
applicant’s workplace.

[13] 
For these reasons, the applicant’s challenge to the
arbitrator’s finding on substantive fairness cannot succeed.

[14] 
The question of procedural fairness stands on a different footing.

[15] 
More than five months after the initial discovery of the unlicensed
ammunition, the applicant was issued with a notice
of an expeditious
process under Regulation 9(2)(b) of the South African Police Service
Discipline Regulations, 2016 (“the
Regulations”).

[16] 
Regulation
9 provides for an expeditious disciplinary process to be followed in
circumstances where alleged misconduct is of a serious
nature or
falls within the ambit of Regulation 5(4) – which lists certain
specified forms of misconduct.[4]

[17] 
Regulation 9(2) sets out the expeditious procedure to be followed in
these circumstances, in the following terms:

“(2) The said
person [i.e. the relevant supervisor] must–

(a)  on
receipt of the full substantiated report satisfy himself or herself
that the alleged misconduct is misconduct as contemplated
in
regulation 5(4) and that the nature of the misconduct justifies an
expeditious procedure;

(b)  if
satisfied that the misconduct justifies an expeditious procedure he
or she must notify the employee of the allegations of misconduct
and
instruct the employee to appear before him or her to answer to the
allegations of misconduct. The notice must contain a description
of
the allegations of misconduct, that he or she has the right to be
represented, the date and time when the employee must appear,
and
supporting documents and statements (if available). The notice period
may not be less than five (5) calendar days, and it must
be served in
the manner set out in these Regulations. If not satisfied that the
misconduct justifies an expeditious procedure he
or she must refer
the matter back to the supervisor for it to be dealt with in
accordance with the normal procedure;

(c)  when
the employee appears before him or her, he or she must inform the
employee of the allegations of misconduct and allow the employee
to
defend himself or herself against the allegations (as provided in the
expeditious procedure). The said person may take any steps
deemed
necessary to finalise the matter provided for in these Regulations;

[21] 
The
arbitrator’s findings to the contrary are not reasonable. Her
finding that the dismissal was procedurally fair falls to
be reviewed
and substituted with a finding that the dismissal was procedurally
unfair.[5]

[22] 
The
applicant is therefore entitled to compensation in respect of the
procedural unfairness of his dismissal. In exercising my discretion

in this regard, I am mindful of the fact that compensation is in the
nature of a solatium, which should be commensurate to the
injury (in
this case, unfair treatment) suffered. I consider compensation equal
to four months’ salary[6]
to be fair, having regard to the applicant’s length of service
(which dates back to 1979) and the degree of the departure
from a
fair procedure, which was severe.

[23] 
As regards costs, there is no ongoing relationship between the
parties and the applicant, who is an individual, has been

substantially successful in the review. Costs should follow the
result.

[24] 
In the premises, the following order is made:

[1]  The second
respondent’s arbitration award issued under the first
respondent’s case number PSSS 761-17/18 dated
21 December 2021
is partially reviewed and set aside and substituted with a finding
that the applicant’s dismissal was substantively
fair but
procedurally unfair.

[2]  The third
respondent is ordered to pay the applicant compensation equivalent to
four (4) months’ salary in the sum
of one hundred and forty
thousand three hundred and thirty-two rand (R140332), less income
tax, within 7 days of the date of this
order.

[3]  The third
respondent shall pay the costs of this application.

Leslie
AJ

Acting
Judge of the Labour Court of South Africa

Representatives
–

For
the applicant:  S Parker, Parker Attorneys

For
the third respondent: M A McChesney, instructed by the State
Attorney, Cape Town