Solidarity v South African Police Service and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Nkutha-Nkontwana J |
| Judgment Date | 10 January 2023 |
| Citation | 2023 JDR 2631 (LC) |
| Hearing Date | 02 June 2022 |
| Docket Number | JS1030/17 |
| Court | Labour Court |
Nkutha-Nkontwana J:
Introduction
In this action, the applicant (Solidarity), acting on behalf of Colonel A Oosthuizen (Col. Oosthuizen), is challenging the conduct of the first to third respondents (SAPS, the Minister and the National Commissioner) in failing to deal with her grievances pertaining to the unfair discrimination that was perpetrated by the fourth and fifth respondents (Warrant Officers (WOs) Tikoe and Mphana). The first to third respondents are opposing the action and are collectively referred to as the respondents.
The trial commenced on 19 April 2021 and became part heard on 21 April 2021. It resumed on 13 June 2022 and was still part heard on 17 June 2022. It sat for the last time on 12 to14 September 2022. The parties agreed to file written closing submissions. Solidarity filed its heads of argument on 29 September 2022, while the respondents filed their heads of argument on 27 September and their reply to Solidarity heads argument on 4 October 2022.
Background
This matter pertains to the allegations of racial abuse suffered by Col. Oosthuizen at the instance of her direct subordinates, WOs Tikoe and Mphana, and the alleged failure by the respondents to protect and defend her dignity.
Col. Oosthuizen has been in the employ of SAPS since 1990. At the time of the incident, she held the rank of Lieutenant Colonel (Lt. Col) and was the Commander of Human Resources Management (HRM) at the Klerksdorp Police Station (Klerksdorp).
The genesis of this contestation is the incident that took place on 27 February 2017. WOs Tikoe and Mphana went to Col. Oosthuizen consequent to her corrective action against them. She testified that the two WOs were not happy with the fact that she had instructed WO Tikoe to complete a leave form upon realising that he had signed the Z8 form as if he was at work on 24 February
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2017 when he was, in fact, absent. While on 24 March 2017, she had issued WO Mphana with a verbal warning in relation to absenteeism. There was an altercation during which the two WOs threatened and intimidated Col. Oosthuizen and accused her of calling them “kaffirs”.
Col. Oosthuizen reported the incident to Col. Mohulatsi, the Station Commander at Klerksdorp, who issued an instruction that the matter be investigated with a view to institute disciplinary action against the WOs. On 28 February 2017, Lt. Col. Weydeman was appointed to investigate WO Tikoe and Captain Du Plessis was appointed to investigate WO Mphana. Lt. Col. Mohultasi requested that the two WOs be transferred pending the investigations but that was never effected.
On 1 March 2017, WO Tikoe opened a case of crimian injuria against Col. Oosthuizen under case number 10/03/2017 alleging that on 27 February 2017 Col. Oosthuizen called him and WO Mphana “kaffirs”. On the other hand, Col. Oosthuizen opened a case of intimidation against the two WOs under case number 13/3/2017.
On 7 March 2017, the two WOs lodged a grievance against Col. Oosthuizen alleging that, on 27 February 2017, she called them “kaffirs” and she often called blacks “kaffirs”. They demanded that Col. Oosthuizen be transferred pending investigations as they felt unsafe and intimidated by her presence at work.
On 13 March 2017, Captain Du Plessis issued his investigation report wherein he found, that the complaint against WO Mphana was serious and recommended that disciplinary action be taken against him. On 16 March 2017, Lt. Col. Weydeman also issued his investigation report wherein he found that the allegations against WO Tikoe were serious and that disciplinary action be taken against him.
On 15 March 2017, Col. Oosthuizen was approached by Ms Sechele, an intern at the SAPS, who informed her that she overheard the WOs conspiring to falsely accuse her of calling them “kaffirs”. Ms Sechele later gave a statement confirming what she heard and observed and the fact that the WOs had plotted
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to falsely accuse Col. Oosthuizen of referring to them as “kaffirs”. Col. Oosthuizen opened a criminal case of crimen injuria, criminal defamation and perjury against the two WOs under case number 400/3/2017.
On 7 April 2017, Col. Oosthuizen lodged a grievance requesting that disciplinary proceedings be instituted against WOs Mphana and Tikoe for falsely accusing her of calling them “kaffirs”. Instead of dealing with the grievance, on 16 May 2017, Col. Oosthuizen was transferred pending the finalization of the disciplinary investigation that was instituted against her. On 22 May 2017, Solidarity wrote to the SAPS wherein it questioned inter alia, the transfer of Col. Oosthuizen, and demanded that the WOs be subjected to disciplinary action for falsely accusing Col. Oosthuizen.
The criminal case against Col. Oosthuizen was not presecuted. On 22 May 2017, the Chief Prosecutor was of the new that they were no reasonable prospects in the complaint lodged by WO Tikoe.
On 25 May 2017, Captain Morris, who are appointed to investigate WOs Mphana and Tikoe per case number 400/03/2017 which pertained to, inter alia, the false accusation that Col. Oosthuizen called them “kaffirs”, issued his report where he found as follows:
‘I find that this is precious matter. I could not find that any member had an argument with Me. Sechele that can explain that she had something to gain by getting the two warrant officers in trouble with the complainant. Me Sechele also made other allegations about the two members and about not wanting to sign a leave form. I further find that there is a Prima Face case against the said members i.t.o regulation 5(3)(a) and that they be charged accordingly.’
Yet, the above recommendation was not implemented as the Provincial Commissioner and POPCRU, the two WOs’ trade union, had agreed to suspend the disciplinary actions against the two WOs. Instead, Col. Oosthuizen was investigated by Col. Tlhoaele who, in turn, recommended that she be
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charged for allegedly contravening Regulation 5(3)(n) or (t) and (u) [1] of the South African Police Service Discipline Regulations, 2016.
On 23 June 2017, Brigadier Lekubu confirmed that the disciplinary hearing against WO Mphana was suspended pending the finalisation of his grievance against Col. Oosthuizen and that the transfers of WOs Mphana and Tikoe had been placed on hold.
On 28 June2017, Col. Oosthuizen registered a second grievance due to, inter alia, the failure of the SAPS to comply with their own internal policies and procedure and for suspending the disciplinary action of Mphaha in order deal with the WOs grievance. Col Oosthuizen requested that the letter of Brigadier Lekubu be withdrawn and that disciplinary action be taken against WOs Mphana and Tikoe but to no avail.
On 1 August 2017, Col. Oosthuizen referred the dispute to the CCMA and the matter was conciliated on 20 September 2017 and a certificate of non-resolution was issued.
On or about 14 August 2017, Col. Oosthuizen received a notice that a decision was taken to charge her for using the word “kaffir”. On 14 September 2017, she appeared before a disciplinary hearing chaired by Col. Raphata. She was acquitted on all charges and the chairperson opined that:
‘There was [sic] contradictions on the testimony of the three witnesses of the Employer;
There was testimony that WO Tikoe and Mphana colluded to falsely accuse Lt Col Oosthuizen;
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The two members showed during their testimony that they have a toxic relationship.’
On 6 November 2017, WO Tikoe lodged another grievance, alleging once again that on 27 February 2017 Col Oosthuizen called them “kaffirs”.
After various correspondence between Solidarity and SAPS in relation to the manner it had been handling Col. Oosthuizen’s grievances, on 19 March 2018, the WOs were ultimately charged. They appeared before the disciplinary hearing on allegations of prejudice against the administration discipline or efficiency of the department, office or institution of the state conducting themselves in an improper and disgraceful and unacceptable manner and intimidation or victimization of another employee.
WO Mphana was found not guilty and the reason being that the employer representative and employee representative agreed that there are no statements that corroborated and prove that he committed misconduct as the statements before the chairperson were incorrect and...
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