About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 255
|
|
Viljoen v Nemasisi NO and Others (20122/07) [2009] ZAGPPHC 255 (3 June 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case no.:20122/07
DATE:03/06/2009
In
the matter between:
A.J.
VILJOEN
....................................................................................................
APPLICANT
HN
NEMASISI
NO
..................................................................................
1st
RESPONDENT
PROVINSIALE
KOMMlSSARlS
..........................................................
2nd
RESPONDENT
NASIONALE
KOMMISSARlS
...............................................................
3rd
RESPONDENT
MINISTER
VAN VEILlGHEID EN SEKURITET
…...............................
4th RESPONDENT
JUDGMENT
TLHAPI.
AJ
[1]
The applicant was a detective inspector attached to the Organized
Crime Unit of the South African Police Services. He was stationed
at
his Provincial Head Office in Polokwane before his discharge from the
service on the 7 December 2005. The applicant seeks to
review the
actions of the first and second respondents in particular with regard
to his suspension without salary and benefit effective
the 1 June
2005 and his dismissal or discharge from service on the 7 December
2005.
BACKGROUND
[2]
The applicant was arrested with two of his colleagues on charges of
fraud on the 25 April 2005. He was released on bail on the
same day.
The second respondent suspended him from duty without salary or
benefits by letter dated 1 June 2005. Contrary to what
was said in
this letter and as required by the regulations (Regulations for the
South African Police Service No. 17682 dated 27
December 1996), he
was never given the opportunity to make any representations to the
second respondent prior to his suspension.
He contended that the
second respondent had therefore failed to exercise proper discretion
when considering his suspension.
[3]
On the 19 August 2005 he received notification to attend a
disciplinary hearing to be convened from the 29th to the 30th of
the
same month. He was given less that 7 days notice to prepare as
required by the regulations and. the charge sheet was not annexed
to
such notice, He failed to attend the hearing due to ill health and a
sick note was handed in on his behalf. Another notification
dated the
30 August 2005 was served on him on the 28 September 2005. It advised
him of the next scheduled date of the enquiry,
the 4 October 2005.
The charge sheet was again, not attached and. short notice was given
for preparation of the disciplinary hearing.
[4]
The applicant assumed that the charges were similar to those of the
criminal case against him, which had already commenced.
He applied
for another postponement for purposes of preparation and in order to
secure legal representation provided for by the
state, in respect of
the disciplinary hearing. Applicant averred that the second
respondent was responsible for effectively denying
him the right to
legal representation with full knowledge that he required such
assistance because he was facing serious charges
and. because he
could not afford one due to his suspension without a salary This
occurred despite an entitlement to legal representation
as prodded
for in the regulations.
[5]
On the 21 November 2005 the applicant received a letter dated the 16
November 2005 which noted his failure to attend the disciplinary
hearings of the 29th August and 4 October 2005.
He
was informed that he was required in terms of the regulations, to
arrange a date with the disciplinary officer for the next sitting
of
the disciplinary hearing. A letter in this regard was forwarded on
the 2 December 2005 by his union. Solidarity Prior to receiving
a
response and on the 3 December 2005, the applicant addressed a letter
of concern to the Commissioner of Police and others.
The
second respondent informed Solidarity that a disciplinary hearing had
been convened for the 5 December 2005. The notification
was not in
the prescribed format and, in this instance too, insufficient time
had been given for preparation. The applicant failed
to attend this
hearing and caused a sick note to be handed in at the hearing. The
second respondent addressed another letter dated
the 6 December 2005
which convened the disciplinary hearing for the following day, the
7th Further the letter informed him that
failure to attend could
result in his dismissal effective the 5 December 2005. The applicant
was dismissed after falling to attend
the hearing of the 7th and
notification in this regard was only received by him on the 16
January 2006.
[6]
According to the applicant, the minutes of the disciplinary
proceedings of the 7th reflected that he had been found guilty by
the
first respondent He was not certain if any evidence had been lead
before such finding. The applicant averred that his dismissal
by the
first respondent was not in accordance with the regulations 10 (1)
(c) - 10 (5) (a) and (b) and his reasons for dismissal
in a letter
dated the 13 December 2005 to the second respondent did not reflect
the true state of affairs. The applicant referred
a dispute to the
Bargaining Council (SSSBC) on the 8 February 2006. The dispute
related to the manner in which his case was handed
and the referral
was accompanied by an application for condonation for the late
referral of the dispute.
A
response to his letter of concern of the 3 December 2005 and reasons
for his dismissal were communicated to him by letter during
March
2006. He was further informed that his dismissal was in terms of
regulation 5 which did not provide for any process of appeal.
[7]
The determination of the applicant's referral to the Bargaining
Council was only heard on the 28 March 2007. According the panelist
J
B Mthembu, condonation was not granted Further. Mr Mthembu stated in
his analysis of the arguments, the Bargaining Council lacked
jurisdiction to hear the matter and advised that the dispute be
referred to the Labour Court. Consequently the applicant approached
this court for the review of his suspension and dismissal in terms of
the PAJA (Promotion of Administration and Justice Act 3 of
2000).
[8]
The first respondent contended that the regulations made provision
for a suspension without a hearing. Further, that it could
not
establish from the contents of the applicant's file whether applicant
had made any representations to the second respondent
regarding his
suspension, save to state that the applicant failed to challenge his
suspension as provided in regulation 15 (3).
The first respondent
denied that the applicant was not served with a charge sheet and
according to him notice was given timeously.
According to the first
respondent the applicant failed to arrange the rescheduling of the
disciplinary hearing prior to its sitting
on the 23 August 20G5 as
required m terms of the regulations arid that his failure to attend
constituted a misconduct in terms
of regulation 10(2) The hearing was
postponed for twenty one days to the 4 October 2005 and the applicant
was notified accordingly.
He failed to attend this hearing The first
respondert contended that the hearing had been constituted and that
applicant's concerns
relating to legal representation and other
issues would have been dealt with if taken up with the presiding
officer at the hearing,
instead applicant failed 10 attend the
hearing, and chose to take the matters up with the second respondent.
[9]
Having failed to attend the hearing of the 4 October 2005. the
provisions of regulation 10 (5) (a) (ii) were invoked and the
matter
was indefinitely postponed. According to this regulation the
applicant was required to reconvene the hearing by making
arrangements with the presiding officer within two months calculated
from the 4 October 2005 failing whrch he would be deemed to
be
discharged from the service. The first respondent conceded that the
applicant's union was informed of the hearing scheduled
for the 5
December 2005. The concerns addressed in the applicants letter dated
the 3 December 2005 did not reach the presiding
officer. The first
respondent contends that the applicant used all tricks to avoid
attending the hearing and that this was displayed
in the content of
the said letter The first respondent denies that the applicant's
failure to attend the hearing of the 5 December
2005 was motivated by
medical unfitness. He contended further that he had complied with all
the regulations relating to the postponements
and finally dismissed
the applicant by operation of law.
[10]
Three points in limine were raised on behalf of the first respondent.
The first point in limine ooncerned the applicant's failure
to comply
with section 7(1) of RAJA. The second point in limine concerned the
applicant's failure to comply with section 7(2) of
PAJA The third
point in Iimine concerned the jurisdiction of the High Court.
It
was submitted on behalf of the applicant that the founding affidavit
as at paragraph 25 relied on PAJA. No reference was made
in the
founding affidavit to section 25 of the Constitution or to the
dispute being that of art unfair labour practice as envisaged
in the
LRA. In as far as applicant's dismissal was concerned he was not
afforded a right o: appeal despite this being availed in
terms of
rule 13.
[11]
The applicant seeks his reinstatement from the 1 June 2005 with full
benefits. It is therefore important for me to deal with
the issue of
the suspension of the applicant without salary and benefits Certain
documents of importance were not attached to the
founding affidavit
being, applicant's referral of the dispute to the Bargaining Council
(SSSBC). the application for condonation
for the late referral of the
dispute and, the notice informing his dismissal dated the 16 January
2006. The condonation ruling
of Mr Mthethwa does however give
indication of what was before him Paragraph 25 of the founding
affidavit should not be read in
isolation. My understanding of the
ruling which resulted in the launching of this application is that
the applicant referred an
unfair dismissal dispute, he alleged that
he had been dismissed without been afforded a hearing, that is. the
audi alteram partem
rule had not been adhered to. This suggests to me
that the applicant's case before the SSSBC was of a procedurally and
substantively
unfair dismissal and this view is supported by his
averment in paragraph 14.4 and 20. of the founding affidavit.
According to the
applicant the charges before the disciplinary
hearing were similar to those of the criminal ease and he had beer,
dismissed without
any evidence been heard in respect of the charges.
Ordinarily
this dispute would have had to be adjudicated under the LRA that is.
under the conciliation and arbitration process and
possible review
before the Labour Court.
[12]
The applicant referred this dispute to the SSSBC on the 8 February
2006. It was expected of the parties to exchanged 'pleadings'
before
the matter was considered, (section 191(3) LRA). The applicant was
therefore aware of the opposition to his referral and
of the issues
raised regarding his dismissal. The letter dated the 13 December 2005
from the first to the second respondent and
the letter addressed to
the applicant by his employer dated the 9 March 2009 clearly
explained the nature of his dismissal. Further,
It is evident from
the ruling that not only was the applicant's application for
condonation opposed, the respondent, the South
African Police
Services, contended that the dismissal was by operation of law.
[13]
The applicant contends that the condonation hearing was heard without
giving him an opportunity to present his case. The ruling
does state
that findings were made on consideration of the papers only and thrs
process is allowed in terms of the rules, (29 (5),
(6) (8) and (5) Of
the Rules Of the SSSBC) . On the 28 March 2007. a year after the
arspute and application for condonation were
referred. the SSSBC
declared that that it did not have jurisdiction to deal with the
matter and the applicant was advised to approach
the Labour Court. It
was submitted on behalf of the applicant that it was not necessary
for him to have approached this court on
an earlier date or within
the 180 days as prescribed by section 7 (1) of PAJA because he
awaited the outcome of his referral to
the SSSBC. Further, that no
application for condonation was reautred.
[14]
In as far as his suspension was concerned it does not appear from the
founding affidavit that applicant availed himself of
the process to
challenge his suspension in terms of regulation 15 his referral
documents are not part of the founding papers and
it is also evident
from the condonation ruling that the applicant did not refer a
dispute relating to his unlawful suspension to
the SSSBC. His failure
to do so cannot be ignored because he seeks an order to reinstate his
salary and benefits in. my view the
failure by an employer to engage
the applicant as required by regulation 15 resulted in an unfair
labour practice which had to
be dealt with in terms of the LRA.
If
the applicant had referred a dispute then, the said dispute would
have followed the route of conciliation arbitration and possible
review of the award before the Labour Court as provided by the LRA.
The applicant did not avail himself of this process.
[15]
If he approaches this court on the assumption that PAJA was
applicable then section 7(1) provided that the review application
be
brought without unreasonable delay and within a 180 days of the date
of incident. The applicant's suspension was not effected
as a result
of regulation 10. He was suspended in terms of regulation 15,
effective the 1 June 2005 and this application was launched
on the 23
May 2007. In my view, the issue of his suspension was never before
the SSSBC. The condonation ruling would have reflected
such fact.
Therefore the explanation that he awaited adjudication of his
referral does not assist him.
[16]
The applicant referred a dispute to the SSSBC on the S February 2006.
I have already indicated that he was aware as early as
March 2006
that according to the respondents, his dismissal did not relate to
the charges against him and that the first and second
respondent
contended that his dismissal was by operation of the law and that
there was no right of appeal. The issue is whether
the processes
engaged by the firs: and second respondent from the time when the
first disciplinary hearing was convened up to the
7 December 20C5
could be reviewable under PAJA The LRA and the rules prescribed time
limitations within which certain processes
should unfold. The aim is
to enable speedy resolution of a dispute. !t is unacceptable to me
that the applicant as litigant allowed
his application with the SSSBC
to go unattended, for so long, February 2006 to March 2007 and for
him to approach this court without
explaining why ne as litigant
allowed the process1o delay what efforts he engaged with the SSSBC to
have his matter set down or
heard, before approaching this court.
[17]
It is my view that in as far as the applicant sought to rely on PAJA
he ought to have brought a substantive application for
condonation to
explain why the application was not brought within the 180 days and
further, apply for exemption as provided for
in section 7(1) and (2)
of PAJA before the merits of the case could be considered.
[18]
The dismissal or discharge from service of the applicant was the
result of an operation of law. M G Phetheni v The Minister
of
Education and Others,
(2006) 9 BLLR 821
(SCA) determined that a
discharge by operation of law did not amount to administrative action
because it did not involve the exercise
of a discretion. Therefore,
the applicants dismissal cannot be challenged under PAJA, Chirwa v
Transnet Limited and others
(2008) 29 ILT 73
(CC) as at paragraphs
143, 149 and 150.
[19]
In the premises the following order is made.
1.
The application is dismissed with costs which include the costs of
both
counsel.