Labuschagne v Minister van Veiligheid en Sekuriteit (4052/09) [2009] ZAFSHC 105 (22 October 2009)

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[2009] ZAFSHC 105
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Labuschagne v Minister van Veiligheid en Sekuriteit (4052/09) [2009] ZAFSHC 105 (22 October 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : 4052/09
In the
matter between:-
DEON
JACO LABUSCHAGNE
Applicant
and
DIE
MINISTER VAN VEILIGHEID EN SEKURITEIT
Respondent
_____________________________________________________
HEARD
ON:
27
AUGUST 2009
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
22
OCTOBER 2009
_____________________________________________________
[1] There
are pending workplace disciplinary proceedings against the applicant.
He now seeks an order whereby the respondent is
restrained by means
of a prohibitory interdict, from proceeding with the hearing of the
internal appeal. He was, in essence, aggrieved
by his employer’s
refusal: firstly, to terminate his contract of employment and
secondly, to furnish him with reasons for such
unwelcome decision.
The purpose of the interim r
elief
sought is to bring the review proceedings of such decision which he
reckons to be an administrative act.
[2] The
applicant is unhappy about the way the respondent’s functionaries
on the ground and high up have treated him. He has
numerous
complaints. I shall touch on some of the alleged wrong decisions and
actions. He plans to bring review proceedings under
rule 53 in order
to assert his administrative rights. The ultimate purpose of all
these legal battles is to have his dismissal
set aside. He wants to
leave the South African Police Service as a retired and not dismissed
officer. I turn to the facts.
[3] The
applicant was born on 11 March 1970. He is now 39 years of age. He
became a member of the South African Police Service
on 4 January
1988. He was 17 years of age at the time. Now he holds the rank of
a detective inspector in the police hierarchy.
Approximately four
years ago he took ill. On 1 December 2005 he was admitted to Bloem
Care where he was hospitalised for eight
days. His diagnosis was
major depressive disorder. He was seen by a psychiatrist, Dr. M.J.
Kuekue, another psychiatrist, Dr.
M. Matete and an occupational
therapist, Mr L. Delport, all of whom completed assessment reports
that were attached to the founding
affidavit as annexures “A”,
“B” and “C” respectively. He returned to work during January
2006.
[4] Notwithstanding his
treatment, the applicant felt that that he could no longer properly
function. This is how he put it:
“
9.1 Ten spyte
van bovermelde behandeling was ek steeds te alle relevante tye baie
angstig, het ek alle vertroue in die Suid-Afrikaanse
Polisiediens
verloor, was my geheue ernstig aangetas, het ek aan konstante
depressie gely en was my slaap sowel as my eetlus aansienlik

aangetas.....”
He
then took a sick leave.
[5]
On
20 December 2006 he applied for ill-health retirement. He received
no response from the respondent’s commissioner in connection
with
this first application – annexure “D”. He re-applied on 20
January 2008. The second application is marked annexure
“E”.
[6] His
thirty six day sick-leave became exhausted, but he did not return to
work. He felt he could not cope with any police duties
anymore, as
stated by his experts. On 1 August 2008 his salary was officially
stopped. A month later, on 1 September 2008, to
be precise, he was
officially informed that his ill-health retirement application had
been unsuccessful. The applicant was then
called upon to resume his
duties on 10 September 2008. The author of the letter (annexure “F”)
was director K.C. Moloko.
The applicant was informed that, on his
return, he would be placed in an alternative, suitable, low stress
post. The undertaking
to shift him from an apparently high stress
post was intended to accommodate his emotional condition. I take it
that his depressive
emotional condition flowed from his work as a
detective inspector.
[7] The
applicant ignored the call up. He was dismayed by the negative
outcome of his retirement application.
“
Ek bevestig dat
ek het nie op
10
September 2008
my
werksaamhede
hervat nie, aangesien my emosionele en gesondheidstoestand in so mate
verswak het dat ek nie meer kans gesien het om te werk nie
en was die
moontlikheid nie uitgesluit dat ek irrasioneel sou kon optree nie.
In die verband verwys ek weereens die Agbare Hof
na bovermelde
verslae.”
[
8] On
6 February 2009 he was served with particulars of the charges. The
first charge of misconduct was that he failed to resume
duties after
the expiry of his sick-leave on 18 May 2008 – annexure “G1”.
The second charge of misconduct was that he disobeyed
a lawful
written order on 4 August 2008 to resume duties – annexure “G2”.
The written particulars were not accompanied by
the required written
notice as to the venue, date and time where the disciplinary hearing
was to be held. The applicant heard
through the grapevine that his
disciplinary enquiry was to be held on 10 March 2009. He then
immediately appointed Attorney Leané
du Plooy, to represent
him. At his request, the hearing was rescheduled for 20 March 2009.
On that day he was found guilty of
both workplace transgressions.
The sanction imposed on him was one of outright dismissal.
[9] Subsequently
the applicant noted an appeal. While the internal appeal was still
pending, the applicant,
via
his attorney, addressed a letter dated 27 July 2009 to the
respondent’s commissioner. He asked for the reasons relative to
the latter’s refusal to let him retire on the ground of ill-health.
He reckoned that administratively such a decision was unjust,

unreasonable and unfair in that it was in conflict with the findings
of experts as set out in the two psychiatric assessment reports
and
the occupational assessment report. This then is the synopsis of the
founding affidavit.
[10] About
two weeks later the applicant launched the current proceedings. The
application was filed on Wednesday 13 August 2009
and served at 17h05
as an urgent application and set down for hearing at 09h30 on
Thursday 14 August 2009. On that day the matter
served before my
brother Hancke J. The respondent sought an postponement so that he
may prepare the answering papers, something
he could not afford to
have done in less than 18,5 hours, night hours included. Hancke J
determined the formal deadlines, temporarily
put the pending internal
appeal on hold, reserved the costs and postponed the matter for two
weeks.
[11] In
his answering affidavit the respondent resisted the grant of an
interdict and the related orders sought by the applicant.
The
respondent denied that the applicant’s health had deteriorated;
that the respondent was to blame for the delay in the processing
of
the applicant’s retirement application; that the applicant was not
a suitable candidate for any alternative post in the employ
of the
South African Police Service; that the applicant’s remuneration was
unfairly withheld; that he was incapable of performing
any meaningful
police work; that the applicant qualified to be retired on the ground
of ill-health; that the applicant was severely
impaired; that the
respondent’s commissioner provided the applicant with an incomplete
transcript of the disciplinary hearing;
that there was any connection
between the disciplinary enquiry and his collective right for reasons
in terms of paragraph 8.7.1
PILIR; that the respondent has refused to
give such reasons to the applicant relating to his application for
retirement (annexure
“R10” read with annexure “R7”); that the
applicant will be precluded from bringing review proceedings should
the disciplinary
proceedings be concluded prior to such review
proceedings and that an interdict was necessary to safeguard his
rights to have the
decision on the retirement application reviewed.
[
12] In
his answering affidavit the respondent resisted the grant of the
orders sought by the applicant on substantive and procedural
grounds.
Besides resisting the matter on the merits, the respondent also
raised a number of preliminary points of law. For reasons
which will
appear below, I considered it unnecessary to hear the merits and
directed the respective lawyers to confine their arguments
to the
points
in
limine
.
[13]
In
his replying affidavit the applicant replied that there was no
substance in any of the points
in
limine
raised by the respondent.
[14] On
behalf of the respondent, Mr. Gough contended that there was no
measure of urgency involved in the application; that the
court had no
jurisdiction to direct the respondent to furnish reasons for his
decision; that the non-joinder of the respondent’s
commissioner was
a serious, albeit curable, omission and that the applicant had not
exhausted the internal remedies.
[15] I
deal first with the objection relative to material remedies. The
applicant, as an employee, was aggrieved by the decision
of the
respondent, as an employer. The applicant wanted his employer to
retire him from active police service on the grounds of
ill-health.
His diagnosis was chronic major depressive disorder, according to Dr.
M.J. Kuekue, the psychiatrist – annexure “A”,
p. 48 of the
record. The emotional disorder was, according to the psychiatrist,
of such magnitude that it severely impaired his
occupational
functions.
[1
6] The
functional incapacity of an employee, on the grounds of ill-health or
injury, is a matter provided for in section 10 Schedule
8: Code of
Good Practice: Dismissal. The schedule forms part of the
Labour
Relations Act, 66 of 1995
.
Section 10(1)
reads:
“
10 Incapacity:
Ill health or injury
(1) Incapacity on
the grounds of ill health or injury may be temporary or permanent.
If an
employee
is temporarily unable to work in these circumstances, the employer
should investigate the extent of the incapacity or the injury.
If
the
employee
is likely to be absent for a time that is unreasonably long in the
circumstances, the employer should investigate all the possible

alternatives short of
dismissal
.
When alternatives are considered, relevant factors might include the
nature of the job, the period of absence, the seriousness
of the
illness or injury and the possibility of securing a temporary
replacement for the ill or injured
employee
.
In cases of permanent incapacity, the employer should ascertain the
possibility of securing alternative employment, or adapting
the
duties or work circumstances of the
employee
to accommodate the
employee’s
disability.”
[1
7] The
decision which has precipitated these proceedings, was contained in a
letter dated 1 September 2008 – annexure “F”.
Its author was
Director K.C. Moloko, Section Head: Medical Administration, SAPS Head
Office, Pretoria. The relevant portions
thereof read as follows:
“
ILL-HEALTH
RETIREMENT: NO 0426701-0 INSPECTOR D J LABUSCHAGNE
At para 2.
This
office has considered the findings and recommendations of the Health
Risk Manager as well as reports from the treating doctor
and it was
decided that the employee must resume his or her duties in an
alternative, suitable low-stress post on or before 2008-09-10.
At para
3. The
reason for the decision taken in paragraph 2 is to conform to
requirements as stipulated in
Labour Relations Act, 66 of 1995
:
Schedule 8 par. 10 & 11, and to grant the employee the
opportunity to optimize his treatment as follows:
At para
7. Kindly
note that this office considers the employee’s application for
Ill-Health Retirement as finalized, however, the employee
must
receive support from the Employee Assistance Services. A report from
EAS as well as the Commander regarding work performance
in the
alternative post must be submitted to Head Office within three months
after resuming duties.”
[1
8] In
par.3 of the letter the author referred to the relevant provisions of
the aforesaid labour legislation. He made specific
reference to
sections 10
&
11
of Schedule 8. The essence of the respondent’s
defence was that the matter was a pure labour dispute and as such
must be determined
within the confines of the applicable resolutions
taken by the Public Service Coordinating Bargaining Council (RSCBC)
which governs
the employment relationship between the respondent’s
state, as the employer, and the applicant, as its employee.
[1
9] In
KOTZE
v NATIONAL COMMISSIONER, SA POLICE SERVICE & ANOTHER
(2008) 29 ILJ 1869 (T) at par. 7 Fabricius AJ correctly pointed out
that the resolutions of the said Bargaining Council not only
deal
with a great variety of matters such as the ill-health retirement,
but also with certain special procedures designed to resolve
the
labour disputes in terms of the collective agreements between the
State, as an employer, and a number of employee parties.
[20]
Section
24(1)
of the LRA provides that every collective agreement, save for
two specified exceptions, must provide for a procedure to resolve
any
dispute about the interpretation or application of the collective
agreement. The procedure requires the parties first to resolve
the
dispute through conciliation and if the dispute remains unresolved,
to resolve it through arbitration.
[21]
Section
28(1)
of the LRA provides, among others, that the powers and
functions of a bargaining council include:
“
(a) to conclude
collective agreements;
(b) to enforce those collective
agreements;
(c) to prevent and resolve labour
disputes;
(d) to perform the
dispute resolution functions referred to in
section 51
;”
[
22]
Section
51(2)
of the LRA provides that the parties to a bargaining council
must attempt to resolve any dispute between themselves in accordance

with the provision of the constitution of such bargaining council.
[23] The
responsible bargaining council in this instance is called Safety &
Security Sectoral Bargaining Council (SSSBC). Its
constitution was
attached to the answering affidavit as annexure “R3”. The scope
of this bargaining council is the State as
employer and those of its
employees who are exclusively employed in the South African Police
Service in terms of the
South African Police Service Act, 68 of 1995
,
and the Public Service Act of 1994. The powers and functions of
SSSBC are identical to those of a bargaining council as more
fully
set out in section 28 of the LRA. Section 5(b) of SSSBC constitution
specifically provides that SSSBC has to implement monitor
and enforce
its collective agreement.
[
24] The
prime objectives of the SSSBC are to promote:
“
(a) labour peace
in the
sector
;
(b) a sound
relationship between the
employer
and
its
employees
;
(c) collective
bargaining in the
sector
;
and
(d) the effective
and expeditious resolution of disputes in the
sector
.”
[
25] The
applicant was a member of a trade union, POPCRU, which was apparently
a party to the said collective agreement. He consulted
the trade
union before he initiated these proceedings. The existence of the
collective agreement was not disputed by the applicant.
On 25 July
2003 the rules pertaining to the grievances of the employees in the
public service were published in terms of
section 11
of the
Public
Service Commission Act, 46 of 1997
. During November 2005 a final
document with the title “Policy and Procedure on Incapacity Leave
and Ill Health Retirement (PILIR)
was determined in terms of
section
3(3)(c)
the Public Service Act of 1994. The document was issued by
the Minister of Public Service Administration. It consists of
directions
that are binding on public employers and public employees.
The question of early retirement on the grounds of ill-health is
comprehensively
provided for in section 8 of the 2005 policy and
procedure document (PILIR).
[2
6] Section
11 of PILIR deals with the differences, in other words, the disputes
between the employee and the employer. It provides
that:
“
11.1
An
employee who is not satisfied by a decision by the employer may lodge
a grievance
as contemplated in terms of the rules made by the Public Service
Commission.
11.2 In terms of
section 35 of the PSA, the employer requires
new
medical evidence to defend his/her decision
.
The costs of such medical evidence would be for the account of the
employer. If the employee requires new medical evidence to
proof the
substance of his/her grievance, the cost will be for the employee’s
account.
11.3
If
an employee refuses to accept the adapted duties or to move to
alternative employment, which is more suitable for his/her
incapacity,
the employer may, subject to due process being followed,
terminate the services of the employee concerned.
”
[2
5] The
section is procedurally prescriptive. It requires that a public
employee aggrieved by a public employer’s decision, must
accept the
adapted duties or move to alternative post, but he may lodge a
grievance provided he first complies. Once such grievance
has been
lodged, the public employer concerned is obliged to seek new medical
evidence. It is impermissible for an aggrieved employee
to simply
ignore the employer’s order that he resumes his work on the ground
that such decision is in stark contrast to the medical
finding and
recommendation of his experts and to take steps against the public
employer contrary to the prescripts of the section
or to embark on a
course of litigation outside the confines of the applicable
resolutions of the bargaining council –
KOTZE
v NATIONAL COMMISSIONER, SA POLICE SERVICE
,
supra
,
at par. 6. A dissatisfied employee, who acts contrary to the agreed
procedure, imperils his contract of employment – section
11.3.
[26] The
purpose of section 11 is to foster genuine attempt to resolve any
labour dispute internally. It is a binding procedural
requirement.
It has to be complied with before legal proceedings are instituted in
the Labour Court. See
LAWSON
v CAPE TOWN MUNICIPALITY
1982 (4) SA 1
(C);
MALULEKE
v MEC FOR HEALTH AND WELFARE, NORTHERN PROVINCE
1999 (4) SA 367
(TPD) at 372;
NTAME
v MEC FOR SOCIAL DEVELOPMENT, EASTERN CAPE, AND TWO SIMILAR CASES
2005 (6) SA 248
(E) at par. [31].
[2
7] It
will be readily appreciated, therefore, that besides the constitution
of SSSBC, the grievance rules – annexure “R5”
- as well as the
policy and procedure blueprint – annexure “R4” – provide
specific and elaborate machinery for the resolution
of labour
disputes on a specialised domestic front. Such procedures are of a
peculiar character. They are characterised by conciliation
failing
which arbitration endeavours to prevent and to resolve labour
disputes in order to promote the objectives of the bargaining
council
as spelt out in section 4 SSSBC constitution.
[28] In
crafting and adopting a domestic procedure of such a particular kind,
SSSBC gave effect to section 51(2)(a) which as we
have seen, requires
parties to a bargaining council to attempt to resolve any dispute
between them in accordance with the provisions
of such bargaining
council constitution. The provision is consistent with the spirit of
section 28(1). To ignore this provision
and to obviate the domestic
procedure ordained by the collective agreement, would seriously
undermine if not absolutely frustrate
the very purpose of a dedicated
internal dispute resolution procedure.
[29] It
follows from the aforegoing that the applicant should first have
referred the dispute to the said bargaining council which
has a
comprehensive dispute resolution mechanism governing cases of
ill-health retirements sought by anyone who falls within its
sectoral
scope. I am, therefore, satisfied that the applicant has indeed
failed to exhaust binding internal remedies which were
available to
him before he resorted to the course of litigation.
KGOTSO
v THE FREE STATE PROVINCIAL GOVERNMENT & ANOTHER
[2006] 7 BLLR 664
(LC) per Francis J. The point
in
limine
was therefore well-taken. I would therefore uphold it.
[30] As
regards the preliminary objection that the court has no jurisdiction
to entertain the matter, it was held that if the court
lacked
jurisdiction, there was no need for the court to go into the merits.
The jurisdiction must be determined prior to the determination
of the
merits of the matter –
MAKHANYA
v UNIVERSITY OF ZULULAND
[2009] 8 BLLR 721
(SCA).
[31] The
applicant relies heavily on his constitutional rights in support of
his assertion or contention that this court has jurisdiction
to hear
the matter. He asserted in paragraph 64 of his founding affidavit
that the respondent’s failure to furnish him with
reasons for
refusing his application for early retirement on the grounds of his
ill-health amounted to an administrative act.
He obscurely asserted,
so it seemed to me, that the respondent’s decision therefore
infringed his constitutional right to just
administrative action as
enshrined in section 33 of the 1996 RSA Constitution.
[
32] The
gist of his argument, therefore, is that in this matter a provincial
high court has concurrent jurisdiction with the Labour
Court in terms
of section 157(2) LRA, 66 of 1995. The violation of the applicant’s
fundamental right, so argued Mr. Coetzer,
arose from the specific
dispute over an administrative act performed by the State in its
capacity as an employer, as represented
by the respondent in these
proceedings.
[33] The
matter which gave rise to these proceedings was the employer’s
decision relative to the employee’s application for
retirement.
The applicant’s ultimate aim is to have such decision reviewed and
set aside. His request for the employer’s
reasons was geared at
furthering that ultimate aim. He contended that he needed such
reasons in order to ascertain and draft his
grounds of review. Does
the refusal to grant such an application constitute a reviewable
exercise of public power? Put differently:
Does such refusal amount
to violation of an administrative right?
[
34] On
behalf the respondent, Mr. Gough argued that the public employer’s
refusal to grant the retirement application of a public
employee on
medical grounds did not boil down to an administrative act. He
submitted that the decision was therefore not subject
to review by a
civilian court of general jurisdiction such as a provincial division
of the high court.
[35] The
crux of this particular preliminary question is whether a decision in
respect of an employee’s retirement, is an exclusive
matter as
envisaged in section 157(1) or whether such decision is a concurrent
matter as envisaged in section 157(2) of the LRA,
66 of 1995.
[36] Perhaps
it is helpful to refer to section 33 of the 1996 RSA Constitution
which provides:
“
33 Just
administrative action
(1)
Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose
rights have been adversely affected by administrative action has the
right to be given written reasons.”
[3
7] The
national administration legislation has already been enacted to give
effect to the fundamental administrative rights referred
to in the
aforegoing paragraph.
Section 3
of the
Promotion of Administrative
Justice Act, 2 of 2000
, lays down a statutory procedure which
everyone whose rights have been adversely affected by an
administrative action, has to follow
in order to obtain written
reasons which prompted a public official to take such a decision. I
hasten to point out that not every
decision by a particular public
official or the State in general qualifies to be labelled an
administrative act.
[38] Where,
for instance, a premier of a province decides to transfer from one
department to another a public servant employed as
a director, the
nature of such decision is not administrative but rather contractual
–
KGOTSO
v FREE STATE PROVINCIAL GOVERNMENT & ANOTHER
,
supra
.
If, however, the same premier decides to have the private
residential property of the same public servant expropriated in order

to create thereon an orphanage for homeless children, the nature of
such decision will not be contractual but administrative.
The
employment relationship between the parties will not be a relevant
consideration in the latter scenario as in the former scenario.
[3
9] In
KGOTSO
v FREE STATE PROVINCIAL GOVERNMENT & ANOTHER
,
supra
,
at par. [15] Francis J correctly held that:
“
The nature of
the dispute raised by the applicant is one as between an employer and
an employee. In relation to matters such as
transfers, the relevant
Premier is the ‘executing authority’ who is in effect placed in
the position of the employer as the
representative of the State.
Disputes relating to matters such as transfers involving the
applicant and the Premier are accordingly
disputes between an
employee and the employer as defined in the constitution of the
General Public Service Sectoral Bargaining
Council (‘the Bargaining
Council’).”
[
40] However,
the same cannot be said of the second scenario. Any dispute between
the premier and the director pertaining to the
expropriation will
accordingly be a dispute between the premier in his or her
administrative capacity as an organ of the State
vis-a-vis
the public servant or director in his ordinary general capacity as a
citizen.
[41] The
decision of the respondent’s commissioner or his delegate entailed
the exercise of a contractual and not an administrative
power.
Accordingly it cannot be reviewed and nullified under
section 6
of
PAJA, No. 3 of 2000. Ultimately the primary relief sought cannot be
granted since the decision taken by the respondent’s
commissioner
entailed the exercise of contractual power. The dispute was over
labour rights and not administrative rights. Clearly,
therefore, the
respondent’s commissioner, as a public employer, was not legally
obliged to furnish reasons for the decision,
which was not
administrative in character.
[42] Although
the applicant is precluded from enforcing his labour rights in the
ordinary courts of general jurisdiction, he is
not without a remedy.
He is entitled to challenge the employer’s refusal to terminate his
employment in the special labour law
fora
including the Labour Court itself.
[43] The
decision of the respondent’s commissioner or his delegate entailed
the exercise of the contractual and not an administrative
power and
cannot be reviewed under the relevant provisions of PAJA. Therefore,
I cannot grant a primary or shall I rather say
the ultimate relief
sought by the applicant. That being the case, it follows, without
saying, that I cannot grant the interim
relief. Also the Labour
Court was the appropriate civilian court of special jurisdiction in
which the review proceedings should
be launched –
KRIEL
v THE LEGAL AID BOARD & OTHERS
[2009] ZA (SCA) 76 at paragraph 21. Also see
CHIRWA
v TRANSNET LTD AND OTHERS
[2007] ZACC 23
;
2008 (4) SA 367
(CC) at par.
[65]
.
[
44] In
the letter dated 24 July 2007, the applicant’s attorney, Ms Leané
du Plooy of Goodrich & Franklin, warned the
respondent’s
functionary, superintendent Makaleng, that:
“
If we don’t
receive the reasons within five (5) working days we will bring an
application in the High Court for the review of
Insp. Labuschagne’s
application for Ill Health Retirement.”
It is
crystally clear from this passage that the applicant intends to
initiate review proceedings in this court. There is a dispute
as to
whether the reasons were given or not, but even if it were proven
that there were not, the respondents refusal to do so
would
still not be reviewable in terms of
section 6
of PAJA, 3 of 2000.
Therefore the ultimate relief the applicant contemplates to seek, by
way of
rule 53
review, cannot be granted. Such remedy does not cover
alleged violation of employment rights. There is yet no review
proceeding
before this court. Therefore the finding relating to the
nature of the power exercised, does not dispose of the current
matter.
[45] Now
I turn to the interim relief instantly sought. The launching of
these proceedings to interdict the respondent from finally
disposing
of the disciplinary process, was based on misconception of the
correct legal position. The misconception is evidenced
by the
following extracts from the applicant’s founding affidavit where he
stated:
“
52.
Dit blyk egter tans
dat my enigste moontlike remedies, ten opsigte van my gelese skade,
in alle waarskynlikheid beperk sal word
tot ‘n vergoeding van
hoogstens twaalf maande wat natuurlik ‘n substansiële monitêre
invloed om my finansiële
posisie sou hê.
53.
Indien my aansoek
om hersiening aangehoor sou word alvorens die dissiplinêre
stappe teen my afgehandel sou word (m.a.w. terwyl
ek nog in diens is
van die Suid-Afrkaanse Polisiediens) sal ek uit die aard van die saak
geregtig wees op ‘n maandelikse ongeskiktheidspensioen
vir ‘n
onbeperkte periode indien ek mediesongeskik verklaar sou word.”
[
46] The
applicant knew and appreciated that he had certain internal remedies
and that ultimately the Labour Court was the correct
court where he
could enforce such remedies in terms of the contract of employment.
This much is perfectly clear from paragraph
51 of the founding
affidavit. From the reading of the aforegoing paragraphs it becomes
very clear that the applicant labours under
the mistaken belief that
he stands a better chance of receiving more financial benefit if he
can successfully have the decision
reviewed and nullified before the
workplace disciplinary process has been completed than he would
afterwards. He apprehends that
the workplace appeal forum should
uphold his dismissal, he would cease to be an employee and that such
a decision would adversely
restrict the quantum of his compensation
should his review application in the Labour Court later succeed. He
chose to evade the
collective dispute resolution proceedings and to
bypass the Labour Court, because he reckoned that should his review
application
be successfully adjudicated by the high court he stood a
chance of been awarded a monthly disability grant for an indefinite
period
instead of a once-of lump sum compensation equal to his
monthly salary multiplied by a limited period of twelve months only.
[47] He
loses sight of the fact that, on review, the respondent’s employer
might be ordered by the Labour Court to reinstate him.
In the event
of reinstatement, the applicant will then have the opportunity as an
active employee of persuading the respondent’s
commissioner that he
is no longer medically or psychologically, if you will, capable to
remain in any form of adapted or alternative
active service in the
South African Police Service. Almost invariably the Labour Court
hears review applications of persons long
after their workplace
appeals have been dismissed by their employers. Such review
applicants are not adversely affected by the
mere fact that their
dismissals had already been confirmed on internal appeal and they are
no longer regarded as employees by their
former employers.
[
48] The
irony of the instant case is that the applicant seeks to halt the
internal process which he himself set in motion. I was
referred to
no decision in which such a procedure was sanctioned. I cannot see
how sanctioning it now will benefit the applicant.
Put differently,
I cannot see how denying such a relief can prejudice the applicant.
[
49] The
applicant needs to appreciate that he cannot be granted ill-health
retirement and all its ancillary benefits on his own
say-so alone.
When the employee lodges a grievance, the employer is entitled to
investigate his alleged emotional condition with
the aid of his own
experts in order to verify the employee’s incapacity. Sitting on
the bench of a civilian court of general
jurisdiction, no judge can
do justice to such intricate medical issues on papers alone, without
the benefit of hearing
viva
voce
evidence.
KOTZE
v THE NATIONAL COMMISSIONER
,
supra
.
[50] Since
the applicant in the instant case cannot bring the review application
in the High Court to have the decision that stemmed
from the exercise
of a contractual power nullified, his only available avenue is to
enforce his employment rights in the Labour
Court. Accordingly any
interim proceedings sufficiently linked to such main proceedings, has
to be instituted in the same court
that will eventually grapple with
such main proceeding. It is improper to go about the course of
litigation as was done in the
instant case. In
GOLIATH
v MANGAUNG LOCAL MUNICIPALITY AND OTHERS
[2008] ZAFSHC paragraph [117] my sister Molemela JA held that the
applicant could not bring interdictory proceedings in the High
Court
and the main proceedings in the Labour Court. I am in respectful
agreement.
[
51] The
refusal by the respondent’s commissioner to grant the applicant’s
application for ill-health retirement being no administrative
action,
the violation of which constitutes a concurrent matter in terms of
section 157(2)
, this court has no power to compel the respondent to
give reasons in connection with the dispute which arose from the
exercise
of a contractual power –
KOTZE’S
-case,
supra
.
That being the case it follows without saying that the interim
relief cannot be granted. The Labour Court has exclusive
jurisdiction
in terms of
section 157(1)
read with
section 158(1)(g)
–
KRIEL’S
-case,
supra
.
[52] In
the circumstances I am inclined to uphold the respondent’s
objection that this court has no jurisdiction. The point
in
limine
is well taken. The applicant’s argument failed to persuade me to
find otherwise. Therefore, the application stands to be dismissed
by
virtue of the two points
in
limine
that I have dealt with in this judgment. In the light of this it
becomes unnecessary to deal with the remaining points
in
limine
raised by the respondent.
[53] It
now remains to consider what an appropriate costs order should be in
this case. On the one hand, Mr. Coetzee asked me to
grant the
application with costs against the respondent. On the other hand,
Mr. Gough urged me to dismiss the application with
costs against the
applicant. I have already found that the applicant should have
followed the avenue of dispute resolution mechanism
as outlined in
the collective agreement. Had he done so, none of the parties would
have incurred the high costs of litigating
in this court. In the
circumstances I can find no just and equitable reason for depriving
the respondent of the costs of this
matter. Such costs were
occasioned solely by the applicant’s abortive endeavour to have the
dispute adjudicated in the wrong
forum for all the wrong reasons.
The costs, including the wasted costs, occasioned by the postponement
of 14 August 2009, shall
be borne and paid by the applicant in favour
of the respondent.
[54] Accordingly
I make the following order:
54.1 The
application is dismissed
in
toto
.
54
.2 The
respondent’s commissioner is at liberty to proceed with hearing of
the internal appeal as noted by applicant.
54.3 The
applicant is directed to pay the respondent’s costs.
________
______
M.H.
RAMPAI, J
On
behalf of
applicant: Adv.
J.C. Coetzer
Instructed by:
Goodrick &
Franklin Inc
BLOEMFONTEIN
On
behalf of respondent: Mr. Gough Instructed by:
State
Attorney
BLOEMFONTEIN
/sp