South African Revenue Service v Commission for the Conciliation, Mediation and Arbitration and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Rabkin-Naicker J |
| Judgment Date | 03 April 2023 |
| Citation | 2023 JDR 2604 (LC) |
| Docket Number | C520/2020 |
Rabkin-Naicker J:
This is an opposed application to review an arbitration award under case number WECT9570-19. In terms of the Award, the second respondent (the Commissioner) found that the dismissal of the third respondent (Allens) was substantively unfair. She reinstated him with back-pay.
2023 JDR 2604 p2
Rabkin-Naicker J
The background to the dispute is set out by the Commissioner in her award as follows:
The applicant, Francois Allens was employed by the respondent as an investigator from 1 March 2008 and was dismissed on 11 May 2019. At the time of his dismissal he was earning R26 826.06 per month.
The applicant was dismissed for misconduct on charges of bribery, corruption and dishonesty. The respondent alleged that the applicant had called a David Hans and had asked him to look the other way when inspecting a container and if he did so he would be well taken care of.
The applicant acknowledged that he called David Hans on 15 September 2017, but denied offering him a bribe in exchange for looking the other way.
When Hans inspected the container, he found undeclared goods which included counterfeit good to the value of about R10 to R12 million.
The applicant seeks retrospective re-instatement.”
SARS grounds for review are that the Commissioner committed gross misconduct in relation to her duties and/or alternatively committed gross irregularities in the conduct of the arbitration proceedings for the following reasons. In submission, SARS argues that the irregularities involved border on a perception of bias on the part of the Commissioner.
During the evidence in chief of Hans, the Commissioner asked him the following:
“COMMISSIONER: What did you think of the call? Did you understand what the applicant was saying then when he asked the question, when he told you those words?
MR HANS: If I might say Ms Commissioner, at the time that the call was made the container was still being unpacked, so we did not get to this yet.
COMMISSIONER: So you did not understand what he was talking at the time when he called you, but after the container was unpacked, what did you think?
MR HANS: Ja, at the time, at the time the call was made and he asked what he asked and at the back of my mind immediately it went oh, this is TIU, this man
2023 JDR 2604 p3
Rabkin-Naicker J
is going to, I do not know what this man wants, because of the current stigma even today against TIU.
COMMISSIONER: So what does that mean?
MR HANS: You see, at that we all feared that you know TIU, with the stigma that is surrounding them that they. . . .[intervenes]
COMMISSIONER: With the stigma surrounding TIU?
MR HANS: TIU yes, because there have always been rumours and stories about them being corrupt and . . .
COMMISSIONER: So you thought, you immediately thought there is some corruption going on here.
MR HANS: Yes.
COMMISSIONER: Hey?
MR HANS: Yes Ms Commissioner”
Under cross-examination, Hans was asked by Allens’ union representative if it was possible that he could have misunderstood Allens:
“MS MANONA: Yes, okay. Let us go back to, you say, you were saying that the call was one minute long according to the source document that is here.
MR HANS: Yes
MS MANONA: Yes. You said that there were greetings exchanged and everything, because you knew each other from, and then there was also a request, but how long, why would it be a minute long, the conversation between the two of you if it was only the greetings and the instruction? I think greetings could be 10 seconds and then the instruction could be 10 seconds.
MR HANS: The warehouse must look nicely at their things, if I remember correctly, the warehouse is quite noisy, there are hoisters moving up and down, so at time it takes a bit longer to, I mean you have noise interference, so you are not listening and it might have been that.
2023 JDR 2604 p4
Rabkin-Naicker J
MS MANOMA: So there is a possibility that based on the noise that you could not hear one properly, hence the duration of the call, maybe he had to repeat himself to you.
MR HANS : Yes
MS MANONA: Okay I said based on the noise and everything, is there a possibility that you could have misunderstood him of what he was saying?
MR HANS: It is possible”
It was further put to Hans that Allens was enquiring about the goods and if there is ‘anything’, he, Hans, could hand it over to TIU. The transcript then reflects an interaction between the Commissioner and Hans which starts after the representative of Allens’ wished to repeat what she had put to Hans. It reads as follows:
“COMMISSIONER: I will repeat it to him now. What the applicant is saying is that the applicant, on that particular day he called you to make enquiries about the goods firstly, and then to ask you to hand over the goods to them once you have completed checking the container. Is that possible?
MR HANS : It was first like it is . . . .[intervenes]
COMMISSIONER : Because they will say he did not ask, he did not tell you they would look after you if you work with them, he is saying he phoned you to tell you how, what is the progress of the checking of the container and if you find something you must hand it over to them. That is what they are saying What is your comment on that? Do you understand or must we say it in Afrikaans?
MR HANS: No. no I am just. . .
COMMISSIONER: Firstly on the one hand you are saying that the applicant called you that day and he said to you if you look after them they will take care of you, that is the words you used, the translation that I am using from Afrikaans, correct?
2023 JDR 2604 p5
Rabkin-Naicker J
MR HANS: Yes
COMMISSIONER : Now the applicant is saying he did not say that to you, he asked you what is the progress of the container, he was checking the container, and if you find something you must had it over to them, TIU. Do you agree?
MR HANS: No, no, no I am getting there, Ms Commissioner. So as far as I put in my statement as well as in my interpretation of what he says, so due to the noise factor it could be possible.
COMMISSIONER : So you are not sure what he said to you, is that what you are saying? You are not really sure if he said, if he said to you what is the progress on the container, you must hand over the container to me or to us. It is very, very different to you, to what you said earlier on, because if you are saying on the one hand now you are not sure now what he said, but in your mind there is a stigma attached to what they are doing, there is a stigma that there is corruption in that department, you automatically assume he saying to you they will look after you, you take care of them. The words are very important sir.
MR HANS: Yes
COMMISSIONER : A person’s life is at stake here, remember that. You are saying that your interpretation of what happened, because there is a stigma attached to the Department, as opposed to him actually telling you they will take care of you if you take care of them, if you work with them then they will take care of you, that is a totally different thing, sir.
You must be careful with what you are saying, so on the one hand if the applicant, if you are not sure what the...
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