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[2015] ZAFSHC 195
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O'Connor v Minister of Defence (4282/2015) [2015] ZAFSHC 195 (29 October 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : 4282/2015
In
the matter between:-
FRANCIS
MICHAEL
O’CONNOR
Applicant
and
THE
MINISTER OF
DEFENCE
1
st
Respondent
A
E
STUURMAN
2
nd
Respondent
HEARD
ON:
22
OCTOBER 2015
JUDGMENT
BY:
KRUGER,
J
DELIVERED
ON:
29
OCTOBER 2015
[1]
The applicant seeks confirmation of a
rule
nisi
:
“
2.
A
rule
nisi
is
issued calling upon respondents to show cause, if any, on
22
October 2015 at 09:30
or
as soon thereafter as applicant’s representatives may be heard,
why the following orders should not be granted:
2.1
That 1
st
respondent is interdicted and prevented from implementing the
transfer of the 2
nd
respondent into position number 676 at Bloemspruit Air Force Base
(Bloemfontein) until the internal grievance and possible subsequent
dispute procedures have been exhausted.
2.2
Directing the 1
st
respondent to register the grievance the
applicant filed on 17 August 2015 and deal with the said grievance in
accordance with
the 1
st
respondent’s grievance
procedure.
2.4
That respondents be ordered to pay the costs of this application.
3.
The relief in paragraph 2.1 above operate as an interim interdict
with immediate
effect.
”
[2]
The rule was issued on 11 September 2015 on an urgent basis.
There are two aspects raised in the
Rule Nisi
:
(i)
para 2.2: Directing the first respondent to register
applicant’s grievance and to deal
with it.
(ii)
para 2.1: Interdicting the first respondent from
transferring the second respondent into position
676 at Bloemspruit
Air Force Base until the internal grievance has been disposed of.
[3]
The
Labour Relations Act 66 of 1995
is not applicable to members of
the National Defence Force (section 2 of Act 66 of 1995); see
LAWSA
,
Vol 13 part 1 par 65 in the title “Labour Law” by Van
Jaarsveld and Others. The labour rights are restricted
in the
interest of discipline and national security (
LAWSA
,
Vol 7 par 368 in the title “Defence” by BC Stoop).
The Constitution in section 23(1) guarantees every person
the right
to fair labour practices (LAWSA, Vol 13.1 para 690 fn 10;
Murray
v Minister of Defence
2008
ILJ 1369 (SCA) par [5].
[4]
The applicant is a Flight Sergeant in the Air Force working at
Bloemspruit, Bloemfontein. The
second respondent is a Warrant
Officer, at present working at the Makhado Air Force Base in Limpopo.
[5]
Applicant says the purpose of the application is to interdict the
first respondent from transferring
the second defendant into post 676
at Bloemspruit Air Force Base “until the internal grievance
procedures and possible subsequent
dispute procedures have been
exhausted”.
[6]
The background to this application is the following:
(i)
The applicant was promoted to Warrant Officer on 1 June 2008.
(ii)
The applicant was a Warrant Officer until he was demoted to Sergeant
by a military court on 7 August
2014 which sanction was implemented
on 17 February 2015 after the internal appeal proceedings were
exhausted.
(iii)
On 17 July 2014 the applicant was informed that with effect from 1
August 2014 applicant was placed
in position 676. He was placed
in position 676.
(iv)
His rank at that stage was Flight Sergeant.
(v)
On 3 August 2015 applicant was informed that he would be removed from
post 676 because the rank coupled
the post 676 is Warrant Officer.
Applicant was told he would be held supernumerary which means that he
is not held against
a specific position. Post 676 has a
technical allowance of R4 100 per month coupled to it which
applicant says he will
lose if he is placed in a supernumerary
position. In the answering affidavit it is stated that the
applicant will not necessarily
lose the allowance if he is placed in
a supernumerary position and could still receive his allowance.
(vi)
On 17 August 2015 applicant tried to file a grievance but that was
refused.
(vii)
After the
Rule
Nisi
was issued the first respondent accepted the grievance for
consideration.
[7]
The applicant’s grievance is that he wants to remain in
position 676. There is apparently
only one such post at
Bloemspruit. Applicant says that the transfer of the second
respondent from Limpopo to Bloemspruit
to fill post 676 will
prejudice the applicant and make the grievance procedure irrelevant.
[8]
The deponent to the answering affidavit says that it was never
suggested to the applicant that he would
most probably have to be
transferred to Hoedspruit. In argument Mr Williams stated that
the first respondent had no intention
of transferring the applicant
out of Bloemfontein, and said that the first respondent would have no
objection to a court order
that the applicant not be transferred out
of Bloemfontein.
[9]
It is not in dispute that the rank coupled to post 676 is Warrant
Officer. Although the applicant
alleges in his papers that the
post can be occupied by a Flight Sergeant, the first respondent makes
it clear that the rank coupled
to the post is Warrant Officer.
Only a Senior Flight Sergeant can apply for post 676, and a person
appointed to that post
will then be promoted to Warrant Officer.
Applicant says that while he was a flight sergeant he executed the
work of a warrant
officer for three years before he was promoted to
the rank of warrant officer.
[10]
The applicant was demoted to the bottom notch Flight Sergeant, being
entry level Flight Sergeant. Applicant
contends that he should
have been demoted to Senior Flight Sergeant, the position he held
before his demotion. The applicant
says his rank should not be
Junior Flight Sergeant, where he has been placed following the
demotion order by the Military Court,
but Senior Flight Sergeant, so
that the is able to apply for post 676 so as to be promoted to
Warrant Officer in that post.
[11]
The applicant relies on a letter written by the Chief of Staff dated
9 January 2014 which sets out
the principles applicable during the
determination of seniority. The heading of the letter is:
“
SAAF
SUCCESSION PLANNING FOR THE FILLING OF GENERAL OFFICERS, OFFICERS AND
NON-COMMISSIONED OFFICERS’ POSTS: 2014
”
The
letter contains the following:
“
(d)
Where a member has been
demoted
in seniority of rank
by a Court of Military Judge, the member’s seniority is
determined by the Court of Military Judge
(e)
Where a member has been
demoted
in rank
by a Court of Military Judge, the member’s seniority is
determined by the seniority he/she had in that rank to which he/she
has been demoted
”
Applicant
says according to paragraph 6(e) he is entitled to be placed as a
Senior Flight Sergeant, which is the rank he held before
his
demotion, so that he can apply for post 676. Having been
(wrongly in his view) demoted to a Junior (entry level) Flight
Sergeant, he cannot now apply for post 676. That is his
grievance.
[12]
The Rules promulgated by the minister provide as follows:
“
Effect
of sentence of reduction or reversion in rank
112.
(1) When a person is sentenced to –
(a) reduction to
any lower commissioned rank;
(b) reduction to any
lower rank;
(c) reduction
to any non-commissioned rank; or
(d) reduction to
the ranks;
such a
person shall take the most junior position on the seniority list of
the rank to which he or she was reduced, and that person’s
pay
shall be diminished according to that which appertains to that new
rank.
”
[13]
The demotion of the applicant was done on 7 August 2014. The
letter of the Chief of Staff upon
which applicant relies deals with
“Succession planning”. A letter of the Chief of
Staff cannot override the clear
wording of the regulations
promulgated in the Government Gazette. The letter deals with
determination of seniority for purposes
of “succession
planning”. The letter does not purport to state in which
rank a person must be placed after demotion.
[14]
In order to succeed in getting a final interdict, the applicant must
show a clear right (
Setlogtlo
v Setlogtlo
1914 AD 221
at 227). The applicant must establish the right he
asserts clearly (
Welkom
Bottling Co. (Pty) Ltd en ‘n Ander v Belfast Mineral Waters
(O.F.S) (Pty) Ltd
1967 (3) SA 45
(O) at 56F-H); Herbstein & Van Winsen,
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa
5
th
Ed (2009) Vol II 1459-1460. The applicant alleges that he was
placed in the incorrect position (of Junior as opposed to Senior
Flight Sergeant) after his demotion. I have serious doubt
whether that is correct. Even if his grievance succeeds,
he
will only be in a position to
apply
for
post 676. It is not certain that the applicant’s
application to be placed in post 676 will be successful. The
applicant does not allege that the second respondent is not suitable
to be placed in post 676. The applicant cannot stop
the first
respondent from transferring the second respondent. Applicant’s
main objection appears to be that he will
lose his allowance if he is
placed supernumerary. The first respondent says he can still
get the allowance. The onus
is on applicant to show prejudice.
The applicant does not have a clear right to be appointed into post
676. On that
basis applicant’s request that the transfer
of the second respondent be stopped should be refused. There is
no indication
what his chances are of getting the post.
Applicant has failed to show a clear right.
[15]
As to the acceptance of the grievance for consideration, the
applicant was correct, and has succeeded.
But as to the
prohibition of the transfer of the second respondent, the applicant
must fail. Thus the applicant is entitled
to the costs up to
the hearing of the urgent application, and the first respondent is
entitled to the costs since then. It
would be practical to make
no costs order.
ORDER
1.
Save for para 2.2, the
Rule
Nisi
is discharged.
2.
The first respondent is interdicted from transferring the applicant
out of Bloemfontein until his grievance
has been dealt with.
3.
No costs order is made.
____________
A. KRUGER, J
On
behalf of applicant:
Adv AP Berry
Instructed
by:
Hugo
Bruwer Attorneys
BLOEMFONTEIN
On
behalf of 1
st
respondent:
Adv A Williams
Instructed
by:
State
Attorney
BLOEMFONTEIN
No
appearance on behalf of 2
nd
respondent.
/wm