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[2017] ZAGPJHC 5
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Seemise and Another v Minister of Police and Another (J2519/16) [2017] ZAGPJHC 5 (10 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J2519/16
In the
matter between:
ONNICAH SEINGWAENG SEEMISE
First Applicant
VUYISILE PERICLES NGESI
Second Applicant
and
MINISTER OF POLICE
First Respondent
ACTING NATIONAL COMMISSIONER:
SOUTH
AFRICAN POLICE SERVICE
Second Respondent
Heard:
02 February 2017
Delivered:
10 February 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
Applicants initially approached this Court on an urgent basis on 27
October 2016, seeking a declaratory order that the notice
to
discharge them from the police service in accordance with the
provisions of
section 35
of the
South African Police Service Act 68
of 1995
[1]
was unlawful, and that it should be set aside. In the alternative,
they sought an order suspending the contemplated discharge,
pending
the Respondents’ full compliance with the provisions of section
189 of the Labour Relations Act
[2]
,
read together with the SSSBC collective agreement relating to Rules
of Engagement. That application came before Mooki AJ on 1
November
2016, and had resulted with a settlement being reached between the
parties, which was also made an order of court.
[2]
The Applicants again approached the Court
on an urgent basis on 30 January 2017. The relief sought in their
Notice of Motion is
substantially the same as in the first
application, other than that it was in two parts. In Part A, an
additional prayer was that
the consultation meeting held on 21
November 2016 and/or any agreement concluded in that meeting should
be declared ‘
null and void ab
initio’
. They further seek
interim relief pending the determination of relief sought in part B,
which pertained to the reviewing, correcting
and setting aside the
decision of the Respondents and proceedings pursuant to the discharge
of the Applicants; a declaration that
the Respondents were in breach
of the provisions of section 189 of the LRA, and further declaring
and directing the Respondents
to furnish them with certain
documentary information outlined in prayers 3.1 to 3.10. The Second
Respondent opposed the application.
Background:
[3]
The two urgent applications came before the
court following correspondence from the Second Respondent, (Acting
National Commissioner
of the South African Police Service,
Lieutenant-General JK Phahlane) addressed to the Applicants, dated 13
October 2016, wherein
the following was expressed:
“
1.
Kindly note that I am considering your discharge from the South
African Police Service in terms of the provisions of
section 35(a)
of
the
South African Police Service Act, 1995
, based on the fact that
your post has been abolished due to the reorganisation or
readjustment of the Service. A new organisational
structure has been
approved on 2016-08-12 and the post that you currently occupy does
not exist on the new structure.
2.
Your alternative placement in the Service has been considered but
unfortunately your skill profile does not meet the requirement
of any
existing vacant post at that level.
3.
Based on the above you are hereby given an opportunity to submit
representations within fourteen (14) days of receipt of this
notice
as to why your discharge should not be affected accordingly.
…
4.
If the discharge is to be effected, it will be accompanied with the
normal benefits associated with a
section 35
discharge.”
[4]
The Second Applicant, Major General
Vuyisile Pericles Ngesi, was appointed as Head: Corporate
Communication, with effect from 01
May 2016. The First Applicant,
Major General Onnicah Seingwaeng Seemise, was appointed as Head:
Marketing and Liaison Service,
with effect from 10 April 2014. The
Applicants aver the above correspondence followed upon the events of
31 December 2015, when
the Acting National Commissioner had presented
to the Portfolio Committee: Police, of the South African Parliament,
a “new”
organisational structure that included their
positions.
[5]
On 13 May 2016, a meeting was held between
the Applicants and the Acting National Commissioner, together with
other high-ranking
officials of the South African Police Service.
According to the Applicants, the purpose of that meeting was to
discuss the national
communication strategy. That meeting however
took a different turn when the Deputy National Commissioner: Human
Resource Management,
Lieutenant General Ngwenya, raised an issue of
poor performance within the Corporate Communication Department. The
Applicants were
informed for the first time that the Corporate
Communication structure was to be reviewed.
[6]
A follow up meeting was held on 14 May 2016
to discuss the Corporate Communication structure. In terms of the
“draft”
structure, the number of Major Generals within
the Corporate Communication department were to be reduced from two to
one.
The Applicants aver that they objected to the “draft”
structure, as they had not been consulted in its formulation.
They
were however informed that any attempt to review the “draft”
structure would be futile, as the Acting National
Commissioner and
the Deputy National Commissioner: Human Resource Management had
already concluded discussions on the matter.
[7]
Several meetings were held thereafter
between the Applicants, the Corporate Communication Department and
high-ranking officials
of the Police Service in an effort to clarify
the issue of the restructuring of the Corporate Communications
Department. Those
meetings, according to the Applicants did not yield
any results. On 13 October 2016, the Applicants received the
aforesaid notice
in terms of
section 35(a)
of the
South African
Police Service Act.
[8
]
Aggrieved at these turn of events, the
Applicants had filed the first urgent application, which was premised
inter alia
on
an allegation that the Second Respondent had failed to meaningfully
consult with them in accordance with the provisions of section
189 of
the Labour Relations Act. The settlement agreement reached before
Mooki AJ on 01 November 2016
inter alia
recorded the following:
“
3.
The parties have agreed to engage in a process of consultation in
respect of the contemplated discharge of the First and Second
Applicant based on section 35(a) of the SAPS Act, the parties agree
as follows:
4.
That the Second Respondent shall within the next two weeks of the
date of this agreement commence with a proper consultation
process as
envisaged or similar to that provided for in section 189 of the
Labour Relations Act, 66 of 1995 (hereafter referred
to as “the
LRA”)
5.
That the consultation process shall include discussions on all
relevant issues such as, but not limited to, the reasons for
restructuring, implications of possible abolitions of posts,
alternatives to abolition of posts, timing of possible termination
and financial consequences thereof.
7.
That this settlement agreement be made an order of court”
[9]
Pursuant to the settlement agreement, the
parties held a consultative meeting on 21 November 2016, in respect
of the contemplated
discharge. It was common cause that this was the
one and only meeting held between the parties. Significant with that
meeting is
that Mr Tumisang Phasha of the Applicant’s attorneys
of record had represented them. He had also signed the minutes of
that
meeting on their behalf. For the sake of completeness, it would
be appropriate to summarise those minutes as follows;
a)
the parties were
ad
idem
that the only alternative
available position that the Applicants could be translated into was
that of Head: Corporate Communication
and Liaison;
b)
the Applicants were encouraged to make
representation on whether either of them were suitable for the
aforesaid position;
c)
having considered the matter, the
Applicants acknowledged and conceded that they did not meet the
requirements of that position;
d)
the Applicants were not interested in
alternative positions/placement in the SAPS (The Applicants however
raises a dispute in this
regard)
e)
the parties were to then consider
settlement proposals with regard to severance package.
[10]
The Applicants subsequently submitted a
draft settlement proposal to the Respondents. They had
inter
alia
proposed that;
1.1
"The
respondents shall pay the 1
st
applicants R22, 843, 863 (Twenty-two million, eight hundred and
[forty] three thousand and eight hundred and sixty-three [R]ands).
1.2
The respondents
shall pay the 2
nd
Applicants R20, 688, 257 (Twenty million, six hundred and sixty-eight
thousand and two hundred and fifty-seven [R]ands).
…
1.4
Alternatively, to paragraph 1.1 and 1.2 above, the parties agree as
follows:
1.5
The respondents shall continue to pay the applicants their salary of
R75209.49 (Seventy-five thousand, two hundred and nine
[R]ands and
[forty] nine cents) per month until the applicants retires at the age
of (60) sixty years.
1.13
The Respondents shall place the applicants on special leave and the
applicants will continue to earn their salary as mentioned
in
paragraph 1.6 above.”
[11]
The Applicant’s Counsel during
argument correctly conceded that the proposals were indeed
preposterous. In a response in a
letter dated 01 December 2016, the
Acting National Commissioner recorded that:
“…
the
outcome of the consultative process was that your clients indicated
that neither of them qualify for the newly-created major
general post
in the Communication and Liaison component, nor are they interested
in alternative placement within the South African
Police Service. The
net effect of the above is that the only outstanding issue between
the parties is the
quantum
payable to your clients in terms of the discharge from the South
African Police Service in terms of the provisions of section 35
of
the South African Police Act, 1995.
…
Based
on the prescriptive provisions of the above legislation, this office
is unfortunately not in a position to agree to the proposed
settlement. The
quantum
payable in instances of a section 35 discharge is duly regulated and
dos not allow for a deviation therefrom.
Based
on the above the attached Estimate Benefits Schedules payable to your
respective clients, are attached for consideration.
The benefits have
been calculated as if the discharge will be effected on 2016-12-31.”
[12]
The letter concluded by referring the
Applicants to a legislative acceptable formula of calculating a
quantum payable upon a discharge
and/ or monetary proposed settlement
for the contemplated discharge.
[13]
The Applicants contended that as a
consequence of information obtained from media reports on 17 January
2017 and 11 May 2016, they
had adopted the view that the Respondents
failed to disclose all the relevant information material to the
consultative process,
which had hindered the parties from having a
meaningful consultative meeting. As a result, the Applicants, through
their representative
sent a letter on 12 December 2016, to the
Respondents, requesting access to information for the purposes of a
further meaningful
consultative meeting. The Respondents rejected
that request on 22 December 2016, on basis that the parties had
abandoned the consultative
process and therefore the request to
access to information was immaterial to the settlement proposal
discussions.
[14]
Further correspondence was exchanged
between the parties during the month of January 2017. The Applicants
maintained that the consultative
processes were not abandoned and
insisted with their request to access to information. As a result of
this impasse, the second
urgent application was launched.
Evaluation:
[15]
It needs to be stated at the outset that
the Applicant’s application is fraught with inherent
difficulties. The first hurdle
to surmount is to convince the Court
to treat the matter as urgent. The principles surrounding urgency are
trite.
Rule 8 of the Rules for the Conduct
of Proceedings in the Labour Court provide that;
(1)
“A party that applies for urgent relief must file an
application that complies with the requirements of rules 7(1), 7(2),
7(3) and, if applicable, 7(7).
(2)
The affidavit in support of the application must also contain-
a)
the reasons for urgency
and why urgent relief is necessary;
b)
the reasons why the
requirements of the rules were not complied with, if that is the
case; and
c)
if a party brings an
application in a shorter period than that provided for in terms of
section 68(2) of the Act, the party must
provide reasons why a
shorter period of notice should be permitted”.
[16]
In
explaining the above rules, the Labour Appeal Court in
Mimmo’s
Franchising CC v Spiro, Harry David
[3]
held that;
“
A
party applying for relief on an urgent basis must in the founding
papers set out the reasons for urgency; state why urgent relief
is
necessary; and also set out why the requirements of the rules of
court have not been complied with, if that is the case (sub-rules
8(2)(a) and (b)). The purpose of those sub-rules is self-evident.
Considerations of fairness dictate that litigious matters should
be
heard in more or less the sequence in which they have become ripe for
hearing. If it were to be otherwise, it will bring about
additional
delays in the hearing of matters already awaiting their turn and
result in self-evident unfairness and the potential
for prejudice.
Sub-rule 8(2) requires an applicant to place such facts before the
court as would be sufficient to enable it to
exercise a judicial
discretion in regard to whether sufficient and satisfactory grounds
have been shown to exist to justify giving
the particular matter
preference. Urgency usually entails a deviation from the forms,
time-limits and procedures prescribed by
the rules or a departure
from the established sitting times of the court (Cf: Luna Meubel
Vervaardigers (Edms) Bpk v Makin and
Another (t/a Makin’s
Furniture Manufacturers) 1977(4) SA 135 (W) at 136 H). The factors
that are usually taken into account
in the exercise of such a
discretion are a) any prejudice that an applicant might suffer if the
application had to be dealt with
in the ordinary course; b) any
prejudice other parties awaiting the hearing of their matters might
suffer if the particular application
were to be given preference; and
c) any prejudice that the respondent might suffer as a result of any
deviation from the prescribed
forms and procedures, the abridgement
of any prescribed time-limits and an acceleration of the hearing
(See: IL & B Marcow
Caterers (Pty) Ltd v Greatermans SA Ltd and
Another: Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another
1981(4) SA 108 (C)
at 112 H – 113 A; 114 A – B). The
provisions of Rule 8 clearly apply to all urgent applications,
irrespective of whether
the relief claimed is of an interim or final
nature”
[17]
In this case, the Applicants contended that
the application was urgent on the basis that they were furnished with
a letter confirming
their discharge with effect from 1 February 217.
The Applicant however omit to state that the correspondence
confirming their discharge
is dated 18 January 2017. No attempt was
made to explain the delay between 18 and 30 January 2017, other than
to state that upon
receipt of the letter from the Respondent, the
Applicants had then despatched an urgent letter on 23 January 2017
raising concerns
that the Respondent had consulted ‘mala fide’
as they did not disclose certain material information, and that it
was
only upon receipt of the Respondents’ response on 26
January 2017 that they had to act.
[18]
In bringing this application however, it
was also set down for a hearing on 2 February 2017. The difficulty
however is that the
Applicants cannot decide as to when a matter is
urgent, and when it is convenient for them to set it down. It is more
the circumstances
that give rise to urgency, that compels a court to
treat a matter as urgent. On the whole, the Applicants failed to
place before
the Court, circumstances that call for their application
to be heard urgently, and any prejudice that they alleged they would
suffer
if their matter was heard in the ordinary course is
exaggerated.
[19]
Furthermore, it is trite that in
circumstances where a party has alternative remedies available, it
cannot claim urgency, as that
urgency would be clearly self-created.
In this case, I conclude without hesitation that the urgency alleged
herein is clearly self-created.
The basis of this conclusion is that
as at the meeting of 21 November 2016, the only outstanding issue
between the parties was
that of the severance package. Having made
ridiculous proposals in that regard, which were correctly rejected by
the Respondents,
the Applicants had then changed tune, and alleged
that the Respondents did not consult in good faith. Even more curious
is that
these allegations arose out of media reports in respect of
restructuring processes within SAPS, which allegedly came to the
Applicants’
attention after the consultation meeting of 21
November 2016.
[20]
In my view, nothing further was left for
discussions where in that meeting, the Applicants, as competently
represented by their
attorney of record, had confirmed that they did
not qualify for the alternative post, nor were they interested in any
other posts
within SAPS. Thus, where the only issue was that of
severance package, and given the legislative confines within which
any severance
package could be negotiated, there was nothing further
for the Respondents to negotiate over.
[21]
With this contrived application, the
Applicants only seek to undo the concessions they made at the meeting
of 21 November 2016.
This court cannot unfortunately assist them in
extricating themselves from their chosen approach in regards to
matters that were
consulted over. There is no reason why they should
be allowed to circumvent the statutory provisions related to alleged
unfair
dismissal disputes. Like all other unfortunate dismissed
employees, they should join the proverbial litigation queue. The
avenue
to approach the relevant forum to determine the fairness of
their discharge remains open to them.
[22]
In the end, to the extent that the
application is not urgent, and moreso since the Applicants have
alternative remedies available
to them, this application ought to be
struck off the roll. Such an order however given the circumstances of
this case, the relief
sought and the pleadings, would not serve any
purpose, as this application would still find its way in the court’s
roll.
Accordingly, it ought to be dismissed based on the following;
[23]
Equally problematic is the relief that the
Applicants seek. It is unheard of, as correctly pointed out on behalf
of the Respondents,
that the court can be asked to make a declaratory
order within the context of an interim order. Worst still, the
Applicant chose
to set down this matter long after the proverbial
horse had bolted. The discharge of the Applicants effectively took
place on 1
February 2017, and by 02 February 2017 when they
approached the Court, there was therefore nothing to suspend or
interdict.
[24]
Equally without logic is the order sought
under Part B of the Notice of Motion. To the extent that the
discharge has taken effect,
any alleged breaches of the provisions of
section 189 are matters to be dealt with in a proper forum in the
event that the Applicants
elect to refer an alleged unfair dismissal
dispute. Further to the extent that the Applicants were inclined to
form the view that
the Respondents failed to properly consult with
them or where in breach of the settlement agreement subsequently made
an order
of court on 1 November 2016, these proceedings were clearly
an irregular step. Nothing also turns on the alleged concession made
by the Respondents that they had not, subsequent to the meeting of 21
November 2016, consulted with the Applicants. As already
indicated,
and emanating from the Applicants’ concessions made in that
meeting, there was nothing or little to consult over,
other than the
issue of severance package.
[25]
Insofar any clear or
prima
facie
right might be alleged, their
case is based on the alleged breach of the provisions of section 189.
The Respondents in discharging
the Applicant invoked the provisions
of section 35 (a) of
South African Police Service Act.
Prima
facie
, and in view of the events of 21
November 2016, there can be no basis to conclude that there are any
of the Applicants’ rights
that were violated, as the
Respondents were indeed entitled in law to invoke those provisions.
In the light of a failure to establish
any clear or
prima
facie
right, there would then be no
need to consider other factors pertaining to the requirements to be
met in such applications.
[26]
In regards to the issue of costs, I agree
with the submissions made on behalf of the Respondents that this
application was clearly
misconceived. The Applicants were assisted
throughout by their attorneys of record. In the light of the events
and meeting of 21
November 2016, and further subsequent
correspondence from the Respondents, it should have dawned upon them
that any other means
to protract their discharge were doomed to fail.
In the light of these factors, the requirements of law and fairness
dictate that
a cost order should follow.
Order:
i.
The applicants’ application is
dismissed costs.
_________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. YF Saloojee
Instructed
by:
Machaka Incorporated
For the
Second Respondent:
P Kennedy SC
Instructed
by:
State Attorney
[1]
“
35.
The National Commissioner may, subject to the provisions of the
Government Service Pension Act, 1973 (Act No. 57 of 1973),
discharge
a member-
a)
because of the abolition of his or her
post, or the reduction in the numerical strength, the reorganisation
or the readjustment
of the Service;
b)
if, for reasons other than the unfitness
or incapacity of such member, his or her discharge will promote
efficiency or economy
in the Service, or will otherwise be in the
interest of the Service; or
c)
if the President or a Premier appoints him
or her in the public interest under any law to an office to which
this Act or the Public
Service Commission Act, 1984 (Act No. 65 of
1984), does not apply.”
[2]
Labour
Relations Act 66 of 1995.
[3]
(JA58/00)
[2002] ZALAC 7
(29 March 2002) at paragraph 29