POPCRU obo Tebogo Makhetle v Safety and Security Sectoral Bargaining Council and Others

Mr Tebogo Makhetle was employed by SAPS as a police officer from 27 June 2006, holding the rank of Constable. On 1 August 2012, he was found at a pawnshop in Diepkloof with two other suspects in possession of a stolen Nikon digital camera that had been taken during an armed robbery from Ms Ntsiki Madela's family. Ms Madela had received information from an acquaintance that three men were attempting to pawn a camera containing her family pictures. JMPD officers escorted her to the pawnshop where she found the three suspects. When questioned, Mr Makhetle identified himself as the owner and produced his SAPS card, claiming he received the camera from someone who owed him money and was pawning it to recover his loan. The suspects were arrested and detained. Mr Makhetle was charged with three offenses: receiving stolen property (common law), and contraventions of sections 36 and 37 of the General Law Amendment Act 62 of 1955 (possession and receipt of stolen property). He was found guilty of all charges at a disciplinary enquiry and dismissed on 13 June 2013. His appeal was unsuccessful. POPCRU referred the unfair dismissal dispute to the SSSBC for arbitration.

• Whether the arbitrator's finding that Mr Makhetle was in possession of stolen property was reasonable
• Whether an accused can offer an explanation for possession as an alternative defence after denying possession once possession is successfully proven
• Whether the failure to put a critical version to the employer's witness during cross-examination is fatal to the employee's case
• Whether the sanction of dismissal was substantively fair in the circumstances
• Whether the arbitration award fell within the band of reasonableness established in Sidumo

The review application was dismissed. There was no order as to costs given the persisting collective agreement relationship between POPCRU and SAPS.

The binding legal principles established are: (1) Failure to put a critical version to the employer's witness during cross-examination is fatal to the employee's case, and unchallenged evidence may become the bedrock of findings against the employee. (2) When a suspect denies possession of stolen property, he cannot offer an explanation for possession as an alternative defence once possession is successfully proven. An explanation regarding the circumstances of receipt must be preceded by at least an admission of possession. (3) To prove guilt under section 36 of the General Law Amendment Act 62 of 1955, there must be possession of stolen or suspected stolen property without giving reasonable account of possession or without reasonable cause to believe that at the time of acquiring it, it belonged to the person it was received from. (4) For the common law offense of receiving stolen property, a person must have acquired or received the stolen property knowing it to be stolen. (5) An arbitration award will not be set aside on review if it falls within the band of reasonableness as established in Sidumo, even if the reviewing court might have reached a different conclusion.

The court observed that Mr Makhetle was clearly ill-advised in denying possession when it was clear he had some explanation to offer. The court noted that receipt of stolen goods is a vital link in the chain of gainful disposal of the spoils of criminality (citing S v Bequinot). The court emphasized that the transgression was particularly serious because Mr Makhetle was a law enforcement officer, making it incumbent upon him to assist in eradicating the trade in stolen goods which would in turn reduce the primary crimes of robbery and theft. The court also noted that costs do not follow the result in the Labour Court, especially where there is a persisting collective agreement relationship between the parties.

This case establishes important principles regarding procedural fairness in disciplinary proceedings, particularly the critical importance of putting one's case to the opposing party's witnesses during cross-examination. It clarifies the requirements for proving offenses under sections 36 and 37 of the General Law Amendment Act 62 of 1955 in the employment context. The judgment reinforces that the receipt of stolen goods is particularly serious misconduct for law enforcement officers who have a duty to eradicate trade in stolen goods. It also confirms the limited scope of review of arbitration awards in labour disputes, applying the Sidumo reasonableness standard. The case demonstrates that an accused cannot adopt contradictory defenses by first denying possession and then, if possession is proven, offering an alternative explanation for innocent acquisition.