South African Revenue Service v National Education, Helath and Allied Workers Union
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Musi JA, Savage AJA and Gqamana AJA |
| Judgment Date | 21 June 2023 |
| Citation | 2023 JDR 2610 (LAC) |
| Hearing Date | 04 May 2023 |
| Docket Number | JA101/2021 |
| Court | Labour Appeal Court |
Savage AJA:
Introduction
This appeal, with the leave of this Court, is against the judgment and order of the Labour Court (per Phehane J) in which the appellant’s application to review an arbitration award issued by the Commission for Conciliation Mediation and Arbitration (CCMA) was dismissed with no order of costs. This
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appeal lies against the Labour Court’s decision in relation to the two respondent employees, Ms Precious Kulati and Mr Nhlakanipho Mkhize.
In August 2016, following a disciplinary hearing, the appellant, the South African Revenue Service (SARS), dismissed four employees for dishonesty. Ms Kulati, Ms Maslopi Mojapelo and Ms Tirhani Nobela, employed as customs inspectors, were found to have falsified customs documentation between 28 and 29 July 2014 in return for equal shares of a R60 000 bribe received from a clearing agent known only as “John”, who acted for Alcari 209 CC (Alcari). The fourth employee, Mr Mkhize, who was employed as a junior inspector, was dismissed for failing to disclose to SARS that Ms Nobela had obtained a bribe from John and that he had been asked by her to take R20 000 to Ms Kulati as her share.
On 1 August 2014, Ms Nobela disclosed the misconduct to Mr Moabi Setshedi, SARS’ Operations Manager at its Edenvale branch. The same day she signed a statement in which she recorded that on 28 July 2014, the acting commander at SARS Edenvale, Mr Thuso Oliphant, had allocated her a container to inspect at the South African Container Depot (SACD), with Ms Kulati as second officer. Ms Nobela and Ms Kulati went to the SACD where they found that the container had already been opened by Ms Mojapelo from SARS Alberton. The container was fully unpacked after lunch, when Ms Nobela stated that “we started counting the cargo”. More than 500 boxes of shoes were found in the container that had not been declared. According to Ms Nobela, it was agreed that these boxes would not be recorded in return for the payment of R60 000 which was solicited from John and paid to Ms Nobela, Ms Kulati and Ms Mojapelo the following day. She stated that Ms Kulati received her portion of the money at the office. Ms Nobela asked that her name be kept from the fellow officers she had been working with that day and explained that she had “come clean” after attending training on 31 July 2014:
‘. . .because this case was eating me from the day I did that exam. I humble request that you forgive me of my wrongdoings, and I’m willing to give back the money. And again please do not mention my name to [Ms Mojapelo] and
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[Ms Kulati], the thing I can do for you in case something like this happens again while I am not involve like in the case. The money is still in my house, and I promise not to use it until I hear from you. . .’
On 26 September 2014, Ms Nobela made a second statement, this time to the South African Police Service (SAPS), in which she confirmed that on 28 July 2014, Mr Oliphant had allocated the container to her and Ms Kulati for inspection. In this statement, she reiterated her previous statement that on arrival at the SACD, they found the container already open and that Ms Mojapelo told them she had opened the container. Ms Nobela recorded further details which included that it was Ms Mojapelo who had spoken to John, who sought a favour as there were about 300 boxes of shoes in the container which had not been declared. According to Ms Nobela, Ms Mojapelo said she had already charged John R45 000 not to disclose the extra boxes. The container was offloaded and the counting was done. Ms Mojapelo recorded the quantity of boxes per pallet. Ms Nobela added up the amounts recorded by Ms Mojapelo and found that there were about 500 extra boxes. She continued that:
‘[Ms Kulati] then said that the R45 000 which John promised [Ms Mojapelo] won’t work as the goods which are extra are not 300 but more. . . [Ms Kulati] suggested that John must pay R60 000 the following day which is 29-07-14’.
Ms Nobela stated that Ms Mojapelo informed her that the extra boxes would not be repacked into the container but would be put to one side. Ms Mojapelo said she would speak to Ms Irene Mokadi, who worked at the SACD, to ensure that the depot report corresponded with the inspection count. Ms Nobela then obtained a copy of Ms Mokadi’s report and returned to the office with Ms Kulati.
Ms Nobela recorded the events of 29 July 2014 for the first time in her statement to the SAPS. She stated that on 29 July 2014, she typed a report “about our inspection at [the SACD] being helped by [Ms Kulati]” which she gave to Mr Oliphant. The same day, she was assigned to go with Mr Mkhize to the City Deep (MSC) depot, near the SACD to inspect a container. On arrival, Ms Nobela received a call from Ms Mojapelo “that John is there with
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our money at the side of SACD”. Ms Nobela drove there with Mr Mkhize. While Mr Mkhize waited in the parking area, Ms Nobela met Ms Mojapelo who told her that they should go to John’s vehicle. Ms Nobela indicated that she was afraid and –
‘. . .[Ms Mojapelo] then walked alone to John’s vehicle and came back. She then showed me the money and said I must go and take mine from John’s vehicle and I said I am afraid and I can’t. I then saw John going to our car where Mr Mkhize was sitting in a driver’s seat and he opened a back passenger door and put money on the seat. He then left. I went to the car and found money in the back seat. It was four rolls of R10 000 for myself and I gave the other R20 000 to Mr Mkhize to give to [Ms Kulati]. I also explained to Mr Mkhize what the money is for.
On our arrival to our office in Edenvale, I met [Ms Kulati] in a parking lot and I told her that her money is with Mr Mkhize and I also told Mr Mkhize in the presence of [Ms Kulati] that he must give the money to [Ms Kulati]. I then left and went to my office.’
According to Ms Nobela, from her receipt of the money she did not have peace in her heart and on 1 August 2014, she decided to disclose to Mr Setshedi what had happened. She informed him that she still had the money. The matter was referred to the police and the R20 000 given to her by John was kept by the SAPS as an exhibit. Ms Nobela concluded her statement to the SAPS stating that she had –
‘. . .never been involved in any corrupt activities in my entire life and that is why I couldn’t keep any benefit received in the wrong manner.’
On 20 October 2014, attorneys acting for Alcari wrote to SARS to advise that the company had paid R60 000 to John, apparently in the bona fide belief that this amount was owed by Alcari to SARS.
Arbitration award
Following their dismissal, Ms Kulati, Mr Mkhize and Ms Mojapelo referred an unfair dismissal dispute to the CCMA. At arbitration, the commissioner found that SARS had failed to prove that either Ms Kulati or Mr Mkhize were guilty of
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“any conceivable misconduct”. Both of their dismissals were found to have been substantively unfair and they were retrospectively reinstated into their employment, with back pay in the amount of R749 401,28 and R480 000,00 respectively. The dismissal of Ms Mojapelo was found substantively fair.
Ms Nobela testified for SARS under subpoena at the arbitration hearing. She stated that Ms Kulati and Ms Mojapelo were with her when the container was inspected and, in cross-examination, she confirmed that Ms Kulati was present when the boxes were counted. Her evidence was that Ms Mojapelo told Ms Kulati and her that John had offered to pay them R45 000 to overlook the extra boxes not declared, but that due to the number of boxes found, Ms Kulati approached John and the four of them agreed that he would pay R60 000, with Ms Nobela, Ms Kulati and Ms Mojapelo to divide the money equally between them in return for not recording the excess boxes found. The report prepared by Ms Nobela following the inspection included Ms Kulati’s name but was not signed by her. The report “was not a true reflection of what we counted, or what we saw on the day. . .[because] we conspired to lie”.
On 29 July 2014, having been assigned to do an inspection with Mr Mkhize at the MSC container depot at City Deep, Ms Nobela received a call from Ms Mojapelo. She told Mr Mkhize that “he must accompany me to go to SACD to go and collect the bribe money from John”. They drove to Ms Mojapelo and, on arrival, Ms Nobela said she left Mr Mkhize in the parking area and went to meet Ms Mojapelo. In examination in chief, Ms Nobela stated that she “proceeded with [Ms Mojapelo] to John’s car to take the bribe money”, while Mr Mkhize sat in the car. Later she testified that Ms Mojapelo walked to John’s vehicle and on her return showed Ms Nobela the money she had collected. Ms Mojapelo told Ms Nobela to go to John’s vehicle to fetch her money but Ms Nobela said she was afraid. She then testified that John had walked to the back seat of the car driven by Mr Mkhize and that he had left the money in four rolls of R10 000 for her there.
Ms Nobela testified that she gave R20 000 to Mr Mkhize for him to give to Ms Kulati at the office and that she explained to Mr Mkhize what the money was for. When Ms Nobela and Mr Mkhize arrived at SARS Edenvale, they met Ms
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Kulati in the parking lot. Ms Nobela told Ms Kulati that her money was with Mr Mkhize. She told Mr Mkhize to give the money to Ms Kulati. Ms Nobela then went to her office...
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