Labour Court upholds reinstatement of Cape Town cop accused of losing service pistol at shebeen
The Labour Court has dismissed an application by the South African Police Service (SAPS) to overturn an arbitration award reinstating a police constable who was dismissed after his state-issued firearm disappeared more than a decade ago.
The court found that although the arbitrator committed a material error in evaluating the evidence of one of SAPS’ key witnesses, the ultimate conclusion that the dismissal was substantively unfair remained reasonable.
Constable Zukile Yozi had been employed by SAPS since January 2005 and was stationed at the Muizenberg Magistrate’s Court before he was dismissed in January 2018.
The disciplinary action stemmed from the disappearance of his 9mm service pistol in April 2015. The firearm has never been recovered.
SAPS alleged that Yozi falsely claimed his firearm had been stolen during a burglary at his home while he was on duty between 29 and 30 April 2015. According to the police, the firearm had actually gone missing earlier after Yozi allegedly took it to a shebeen, where it was left unattended.
Yozi consistently denied the allegation. He maintained that he had mistakenly left the firearm at home before reporting for duty on 29 April 2015, he was issued with a station firearm for his shift and later discovered that his house had been broken into and that the safe containing his service pistol had been stolen. He subsequently opened a criminal case of theft and housebreaking.
Following an internal investigation, SAPS charged Yozi with making a false statement, consuming alcohol while in possession of a state-issued firearm and leaving the firearm unattended. He was found guilty on all charges during a disciplinary hearing and dismissed, with the dismissal based primarily on the allegation that he had lied about how the firearm was lost.
Yozi challenged his dismissal at the Safety and Security Sectoral Bargaining Council, where an arbitrator ruled in October 2023 that his dismissal was substantively unfair and ordered his reinstatement.
SAPS then approached the Labour Court to review and set aside the arbitration award.
The court first dealt with procedural issues, granting condonation to SAPS for filing its review application approximately 133 days late, despite describing the delay as substantial. It also granted condonation to Yozi for the late filing of his answering affidavit because he had been unemployed since 2018 and had experienced financial hardship while the matter dragged on.
Turning to the merits, Acting Judge MJ Motshekga found that the arbitrator had erred by completely disregarding the testimony of SAPS witness Ludumo Nyakiso simply because he struggled to remember important dates.
The judge held that a witness’s inability to recall dates should not automatically result in all of their evidence being discarded. The judgment distinguished between a witness’s credibility and reliability, explaining that a person may testify honestly while still being mistaken about certain details.
Despite identifying that error, the court concluded that it was not sufficient to overturn the arbitration award.
The judge found that SAPS’ own evidence contained significant contradictions.
Nyakiso testified that he had taken Yozi’s firearm after it was allegedly left unattended in a shebeen and sold it the following day. However, another SAPS witness testified that Nyakiso showed him the firearm on 29 April 2015.
The court found that these versions could not both be true. If the firearm had already been sold before 29 April 2015, Nyakiso could not have been in possession of it on that date.
Because of these internal inconsistencies, the court concluded that SAPS had failed to prove, on a balance of probabilities, that Yozi had lied when he reported that the firearm had been stolen during the alleged housebreaking.
The court also rejected SAPS’ argument that the arbitrator should have relied on sworn statements from investigating officers that were never put to witnesses during the arbitration proceedings and therefore could not be tested through cross-examination.
It further found that there was no need for the arbitrator to determine the remaining misconduct charges because Yozi had been dismissed solely for allegedly making a false statement.
In dismissing the review application, the court confirmed the arbitration award reinstating Yozi and made no order as to costs.
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