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[2017] ZAGPPHC 74
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S v Minister of the South African Police Services (17951/16) [2017] ZAGPPHC 74 (16 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 17951/16
DATE:
16/3/2017
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
J
S APPLICANT
and
THE
MINISTER OF THE SOUTH AFRICAN POLICE
SERVICES RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
In his founding affidavit the applicant says the purpose of this
application is to apply for an order:
‘
. . . directing the respondent
to proceed with the Medical Board of Inquiry (the Board) relating to
my application for ill health
retirement, in terms of Regulation 64
of the Police Services Act, Act no 68 of 1995. As the
Honourable Court will take note
from what is contained herein later,
the Respondent commenced with an Inquiry in terms of Regulation 64 of
the Police Services
Act, following my application for ill health
retirement. This Inquiry is still pending, but is not brought
to finality by
the Respondent. Instead of proceeding with the
Inquiry, the Respondent made a unilateral decision, disregarding the
pending
Inquiry, that I am not medically incapacitated. As will
appear from the prayers as contained in the notice of motion, I seek
a mandamus against the Respondent to proceed with the Inquiry in
terms of Regulation 64, alternatively and if this Honourable Court
is
of the view that the unilateral decision taken by the Respondent, is
valid, I seek, as an alternative, an order that such decision
be
restricted and referred to the Board which is pending in terms of
Regulation 64, in order to determine my capacity.’
[2]
The respondent opposes the application for reasons that will become
apparent below.
Background
[3]
The applicant says he was diagnosed by his treating psychiatrist as
suffering from post-traumatic stress disorder (‘PTSD’)
as
a result of which he was not fit to render any further services as a
police officer to the respondent. He thus applied
to be
medically boarded.
[4]
A Board was established by the respondent in terms of Regulation 64
of the South African Police Services Act No 68 of 1995 (‘the
Act’). Regulation 64 regulates the procedure to be
followed when any member applies for medical boarding.
[5]
The Board first convened on 3 October 2013 but was postponed to 31
October 2013 at the request of the respondent’s representatives
as the respondent wanted to appoint his own psychiatrist to
investigate the applicant’s employability as well as for a
decision
to be taken about legal representation for the respondent.
[6]
Instead of appointing a psychiatrist of his choice the respondent
instead, almost a year later, summoned the applicant in terms
of a
Notice dated 4 September 2014 to appear before a ‘Board of
Inquiry’ in terms of section 34 of the Act. The
stated
purpose for which the applicant was to appear before the board of
inquiry was to ‘[inquire] into and make a finding
and
recommendation in order to determine whether you … is
(sic)
fit to remain in the Service as a result/on account of indisposition,
ill-health, disease or injury and or the fitness or ability
of a
member to perform his duties or to carry them out efficiently.’
The applicant was asked to produce any relevant
documents or objects
at the hearing regarding proof of his illness in order to prove his
case.
[7]
The applicant and his attorney duly attended at the inquiry. It
was again postponed at the request of the respondent on
the basis
that the respondent wished to have the applicant evaluated by a
psychiatrist of his choice. The inquiry was accordingly
postponed to 18 November 2014. It was also recommended that the
applicant submit a new application on the basis of new evidence
from
his own psychiatrist.
[8]
Further interactions took place between the applicant’s
attorneys and the respondent’s representatives regarding
some
further requirements of the respondent including the completion of a
‘Functional Medical Assessment Form’
[9]
The inquiry that was scheduled to re-convene on 18 November 2014 was
once again postponed – this time
sine die
due to the
temporary incapacity of Lt. Col. D F Ledwaba of the respondent.
[10]
The applicant’s attorney wrote to the chairperson of the Board
a letter dated 25 November 2014 expressing his concern
at the delay
in a final decision being taken pertaining to the applicant’s
medical condition. The attorney also said
that if there was any
further information required the applicant was prepared to furnish it
as far as he was able to. Importantly,
he then says:
‘
We are of the view that a
prima
facie
case has been made
out by our client and that a decision can in fact be made without
further evidence.’
[11]
It is evident that the applicant was of the view that the respondent
could take a decision on the evidence already before the
Board and
that no further input was required – at least from the
applicant himself.
[12]
The chairperson of the Board, Lt. Col. M.L Bezuidenhout, however,
replied that an objective decision could not be made without
a
medical assessment by the respondent’s Health Risk Manager
(Alexander Forbes) and that before the applicant’s case
could
be referred for assessment he had to provide certain medical
certificates as well as a copy of his identity document which
were
still outstanding. The documents were duly provided by the
applicant.
[13]
It is to be noted that the applicant did submit himself for
examination to a psychiatrist and occupational therapist of the
respondent’s choice on 26 February 2015 and 4 March 2015.
[14]
Applicant’s attorney addressed several letters to Bezuidenhout
and Ledwaba requesting urgent finalisation of the matter
by convening
the previously postponed inquiry. He was informed that
Bezuidenhout had in the interim passed away.
[15]
In a notice dated 24 June 2015 the applicant was informed by a Col.
P.H Dlamini that the medical administration section of
the respondent
had considered the findings and recommendations of the Health Risk
Manager and that it was decided by the respondent
that the applicant
must resume duties in an administrative post by 1 July 2015.
[16]
The applicant, through his attorney objected to the notice to return
to work albeit in an administrative post and demanded
that the notice
be withdrawn and that the inquiry which was postponed indefinitely be
convened to proceed further failing which
he would seek an urgent
interdict against the respondent. The respondent did not reply
to the letter.
[17]
Further inquiries were addressed by the applicant’s attorney to
the respondent and eventually Lt. Col. Ledwaba replied.
He
merely regurgitated the events leading up to the applicant being
called to resume duty but in an administrative post.
[18]
The applicant disputes the view of the respondent’s Health Risk
Manager that he is able to return to work in an administrative
capacity. (The applicant was previously in the respondent’s
Anti-Hijack Unit). The Health Risk Manager’s
conclusion
seems to be primarily based on the report of the respondent’s
Occupational Therapist. However, I am not
called upon to
determine this dispute.
[19]
The essence of the applicant’s contentions is that he should
have been allowed to make further representations at a reconvened
Board of Inquiry.
[20]
The respondent has raised a point
in limine
that this court
lacks jurisdiction to hear this matter and disputes that it was
necessary to reconvene the Board of inquiry as
the Board had
completed its deliberations after the last postponement even
though it did not formally reconvene.
[21]
During oral argument applicant’s counsel said he was deviating
to some extent from the written heads of arguments which
were
prepared by a colleague of his who had in the interim passed away.
Counsel submitted, as I understood the argument,
that the failure by
the respondent to invite the applicant to a reconvened Board
constituted an illegality as it violated his right
to a fair
administrative process. And once illegality is alleged a High Court
has jurisdiction to hear the matter. For the
reasons that
follow that submission cannot be sustained.
[22]
It is indeed correct, as the applicant contends, that he is entitled
to a fair administrative process in his application for
ill-health
retirement. However, the Labour Relations Act 66 of 1995 (the
LRA) and the collective agreements concluded in
the Public Service
Co-ordinating Bargaining Council (‘the PSCBC’) are
relevant in this regard in that provision is
made therein for dispute
resolution of the kind in issue here.
[23]
The applicant’s complaint that the board of inquiry was not
finalised and that the decision taken by the Section Head:
Medical
Administration that the applicant is not a candidate for medical
boarding and should thus report for duty should be determined
within
the confines of the LRA and the PSCBC.
[24]
Regulation 7.5.2 of Resolution 5 of the PSCBC deals with permanent
disability leave and applications for ill-health benefits.
It
provides:
“
7.5.2 Permanent
disability leave:
a)
Employees whose degree of
disability has been certified as permanent shall, with the approval
of the employer, be granted a maximum
of 30 working days paid sick
leave, or such additional number of days required by the employer to
finalise the process set out
in (b) and (c) below.
b)
The employer shall, within 30
working days, ascertain the feasibility
of:
i) alternative employment; or
ii) adapting duties or work
circumstances to accommodate the
disability.
c) If both the employer and the
employee are convinced that the employee will never be able to
perform any type of duties at her
or his level or rank, the employee
shall proceed with application for ill health benefits in terms of
the Pension Law of 1996.”
[25]
Section 24 of the LRA regulates disputes about collective
agreements. It provides in relevant part that:
‘
(1) Every collective agreement
excluding an agency shop agreement concluded in terms of section 25
or a closed shop agreement concluded
in terms of section 26 or a
settlement agreement contemplated in either section 142A or 158 (1)
(c), must provide for a procedure
to resolve any dispute about the
interpretation or application of the collective agreement. The
procedure must first require the
parties to attempt to resolve the
dispute through conciliation and, if the dispute remains unresolved,
to resolve it through arbitration.’
[26]
Accordingly, if there is a dispute about ill-health retirement then
it must be referred to statutory arbitration at the PSCBC.
Section 24 of the LRA ousts the jurisdiction of this court to
interrupt, apply and enforce collective agreements. A dispute
has arisen between the applicant and respondent on the question
whether the applicant is able to perform
any type of duty
in
the police service as contemplated in clause 7.5.2(c) of Resolution
5.
[27]
This adjudicatory route differs materially from a review application
as the LRA provides that an arbitrator would be required
to interpret
and apply Resolution 5 and to make a determination whether in his or
her review ‘an employee will never be able
to perform any type
of duties at her or his level or rank.’
[28]
If, after referring the matter to the PSCBC in terms of Resolution 5,
the applicant does not agree with its finding, his further
remedy
would be to have it reviewed in terms of the statutory arbitration
review proceedings provided for in the LRA.
[29]
The applicant can therefore, in my view, not take the dispute out of
the confines of the LRA and the relevant collective agreements
and
bring it before this court for adjudication.
[30]
Furthermore, the factual disputes about whether the Board completed
its inquiry and whether it must be reconvened as well as
whether the
applicant is too ill to report for duty are matters to be properly
adjudicated in terms of the process provided for
in Resolution 5 and
the LRA. In terms of these processes oral evidence by various
experts may be presented by the parties
in order to reconsider the
applicant’s medical condition and its impact on his future
employment.
[31]
It is there that oral evidence may also be led on the question
whether the Board had completed its inquiry and whether it was
done
in the correct manner.
[32]
The applicant’s cause of action, in my view, does not fall
within the list of impugned conduct under the
Promotion of
Administrative Justice Act 3 of 2000
. As I said, his remedy
lies in the dispute resolution process provided for in the LRA, the
PSCBC agreements and the Policy
and Procedure on Incapacity Leave and
Ill-Health Retirement (‘PILIR’). (The PILIR is a
policy document which
regulates incapacity leave and ill-health
retirement in the public service. It applies to employees of
the SAPS only insofar
as its provisions are not contrary to the SAPS
Act. Clause 3.2.2 of the PILIR vests in an employer the right
to ‘consider
on the basis of medical evidence the discharge of
an employee on account of ill-health’).
[33]
In
Kotze v National Commissioner, SA Police Service and Another
(2008) 29 ILJ 1869 (T)
this court was seized with a review
application in terms of which the applicant sought to set aside the
decision of the SAPS refusing
his application for ill health
retirement. The review was premised on the allegation that the
relevant director in making
the decision had failed to comply with
Regulation 28(4)(a) by not informing him when the medical board would
convene to consider
his fitness to remain in the service. He
charged that he was denied the right to be represented when the Board
evaluated
him. This court per Fabricius AJ (as he then was)
held:
“
[12] Having regard to
applicant’s argument that he was entitled to a fair
administrative process (which I accept for present
purposes), I am of
the view that that particular classification of the dispute does not
take it out of the confines of the
Labour Relations Act and
the
relevant collective agreements and places it within the ambit of the
Administrative Justice Act. If that were otherwise, one
could
realistically imagine by the exercise of skilful legal drafting, an
aggrieved person could merely as a result choose a forum
allegedly
best suited to him/her, either within the confines of the
Labour
Relations Act or
the Administrative Justice Act. This could never
have been the intention of the legislature nor, upon a proper reading
of the judgment
of the Constitutional Court, is a litigant entitled
to do that. In any event, I am of the view that the relevant decision
taken
herein is not “administrative action” as defined in
the Administrative Justice Act. I say that having regard to the
nature of the power that was exercised by way of the mentioned letter
of 19 December 2005.”
[34]
Kotze
was later endorsed by the Constitutional Court in
Gcaba v Minister of Safety and Security and Others (2010) 31 ILJ
296 (CC)
where Van Der Westhuizen J, writing for the majority,
held:
‘
[64] Generally, employment and
labour relationship issues do not amount to administrative action
within the meaning of PAJA. This
is recognised by the Constitution.
Section 23 regulates the employment relationship between employer and
employee and guarantees
the right to fair labour practices. The
ordinary thrust of section 33 is to deal with the relationship
between the state as bureaucracy
and citizens and guarantees the
right to lawful, reasonable and procedurally fair administrative
action. Section 33 does not regulate
the relationship between the
state as employer and its workers. When a grievance is raised by an
employee relating to the conduct
of the state as employer and it has
few or no direct implications or consequences for other citizens, it
does not constitute administrative
action.’
[35]
The respondent submits that the National Commissioner (‘the
Commissioner’) of Police and the Section Head: Medical
Administration were not cited as respondents and this constitutes a
material non-joinder. Whilst s206(1) of the Constitution
vests
political responsibility for policing in the Minister of Police, it
is ultimately the National Commissioner who is charged
with the
control of the police service in terms of section 207(2) of the
Constitution which provides that “[t]he National
Commissioner
must exercise control over and manage the police service in
accordance with the national policy and directions of
the Cabinet
member responsible for policing. This power is given effect to
by section 11(1) of the South African Police Services
Act, 68 of 1995
(the SAPSA) which provides that “[t]he National Commissioner
shall exercise control over and manage the police
service in
accordance with section 207(2) of the Constitution of the Republic of
South Africa, 1996.’
[36]
The respondent says it was the Commissioner, acting through the
Medical Administration Department of the SAPS, who exercised
the
discretion to direct the applicant to resume his duties, hence the
failure to join the National Commissioner as an interested
party to
the application constitutes a material non-joinder and a violation of
Rule 53. Further, the applicant’s failure
to join the
Section Head: Medical Administration is also a material non-joinder
and a violation of Rule 53. This is so because
it is this
official who declined his application for ill-health retirement
acting in terms of the powers conferred on him by the
National
Commissioner under section 11, particularly section 11(2).
[37]
In these circumstances, the point
in limine
as to jurisdiction
must be upheld and I also find that there has been a material
non-joinder of the Commissioner and the Section
Head: Medical
Administration. Accordingly I do not deem it necessary to deal
with the rest of the issues raised relating
to the validity or
otherwise of the decision to order the applicant to resume his duties
albeit in a different capacity.
[38]
The application is dismissed with costs.
_________________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Adv. Welgemoed
Instructed
by
: Schoeman & Associates
Counsel
on behalf of Respondent
: Adv. R. Tulk
Instructed
by
: The State Attorney
Date
heard
: 6 March 2017
Date
delivered
: 16 March 2017