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[2015] ZALAC 106
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National Commissioner of SAPS v Myers (CA 05/2014) [2015] ZALAC 106 (10 April 2015)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, CAPE TOWN
Not Reportable
Case
no: CA 05/2014
In
the matter between:
THE
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN
POLICE First
Appellant
THE
PROVINCIAL COMMISSIONER OF
THE
SOUTH AFRICAN POLICE:
WESTERN
CAPE
Second
Appellant
and
IVAN
MYERS Respondent
Heard:
03 March 2015
Delivered:
10 April 2015
Summary:
Compliance with court order – employer ordered to reinstate
employee- employer contending employee could not be reinstated
as
position no longer in existence because of restructuring –
employer failing to raise objection to the order be granted
–
employer obliged to reinstate employee – appeal dismissed with
costs
Coram:
Davis, Ndlovu and Sutherland JJA
JUDGMENT
DAVIS
JA
Introduction
[1]
Respondent was dismissed from
the South African Police Service on 14 December 2007. At the time of
his dismissal, he occupied the
post of Superintendent and was
Commander of the Maitland Dog Unit. On 29 November 2012, the Supreme
Court of Appeal found that
the respondent’s dismissal was
substantively unfair and ordered appellants to reinstate the
respondent to the position he
held before his dismissal,
retrospectively to the date of dismissal.
[2]
Between the date of the
respondent’s dismissal and the date of the order of the Supreme
Court of Appeal, it appears that a
restructuring took place in the
South African Police Service. As a consequence, the Maitland Dog
Unit, at which the respondent
was stationed prior to his dismissal,
was abolished. A single unit serving a much larger geographical area
which attracted greater
responsibilities was subsequently
established. In contrast to the Maitland post, his post was upgraded
from a level 10 to level
12 post. As a result of this restructuring
and the order of the Supreme Court of Appeal, appellants wrote to
respondent on 19 December
2012 and offered him an alternative post at
level 10. Respondent adopted the view that appellants had refused to
comply with the
order of the Supreme Court of Appeal. He demanded
reinstatement as a Commander of a Dog Unit. He then approached the
court
a quo
seeking,
inter alia
,
an order holding appellants in contempt of the order of the Supreme
Court of Appeal.
[3]
Steenkamp J held that
appellants’ non-compliance with the order of the Supreme Court
of Appeal was not wilful. Therefore it
could not be said that
appellants had been in contempt of court. In this connection, he
followed the requirements for a contempt
of court order as set out in
the judgment of Cameron JA (as he then was) in
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). Steenkamp J then went on to make a finding
which he considered to be in the interests of justice. He ordered
appellants
to comply with the order of the Supreme Court of Appeal
and to reinstate the respondent into the position of Commander of the
Cape
Town Dog Unit at Maitland with retrospective effect to the date
of dismissal.
Appellant’s
case
[4]
Appellants appeared first to
take the view that respondent’s post had been abolished prior
to the order of the Supreme Court
of Appeal. Accordingly, there was
no such post into which the respondent could be reinstated. However,
it appears that there now
existed a newly established post at the
Cape Town Dog Unit which had been established pursuant to the
restructuring. It was common
cause that this post is currently
filled. In these circumstances, it was contended by appellants that
there was no available dog
unit post into which respondent could be
posted. Thus appellants submitted that they had substantially
complied with the order
of the Supreme Court of Appeal by appointing
respondent to the Ravensmead Visible Policing Commander which was a
position held
by a Superintendent at level 10.
Evaluation
[5]
In
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration
[1]
Nkabinde J said the following with regard to the meaning of
“reinstatement”:
‘
The
ordinary meaning of the word “reinstate” is to put the
employee back into the same job or position he or she occupied
before
the dismissal on the same terms and conditions.
’
[6]
Reinstatement remains the
primary statutory remedy in unfair dismissal disputes. Its purpose is
to place an employee into the position
he or she would have held but
for an unfair dismissal. Its purpose therefore is to restore the
status
quo ante
.
Significantly, s193 (i) of the Labour Relations Act 66 of 1995 (“the
Act”) provides that, if the Labour Court or an
arbitrator…
finds that the dismissal is unfair, the court or the arbitrator may:
(a)
order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee either in the work in
which the employee was employed before the dismissal or in
any other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal; or
(c)
order the employer to pay compensation to the employee.
[7]
When the Supreme Court of
Appeal made its decision to reinstate respondent, it would have been
mindful of the possible remedies
set out in s193 (i) of the Act as
would the parties. For this reason, it was at the hearing before the
Supreme Court of Appeal,
which took place in 2012, that is many years
after the restructuring process had taken place, that appellants, if
they had so wished,
should have argued that reinstatement was an
inappropriate order because the relevant post had been abolished.
There is nothing
on the papers neither in the judgment of the Supreme
Court of Appeal to indicate whether such arguments were raised before
the
Supreme Court of Appeal. Suffice to say that the order of the
Supreme Court of Appeal was clear: appellants were to reinstate the
respondent to his former position. There was no qualification made to
the order nor can one be implied.
[8]
When the appellants
restructured the organisation of the South African Police Service and
abolished the Maitland Dog Unit and replaced
it with the Cape Town
Dog Unit they must have known that, were the respondent to have been
successful in his litigation, appellants
would have been required to
place him in his former position or one of a similar nature. That
someone was appointed to be the Commander
of the Cape Town Dog Unit
illustrates, firstly, that there was such a post and, secondly, that
it was appellants who risked the
possibility that successful
litigation by the respondent would place them in a difficult position
regarding reinstatement.
[9]
Be that as it may, the order of
the Supreme Court of Appeal is clear. The opportunity to have raised
objections to the granting
of that order passed when the order was
granted. No further appeal was prosecuted in the Constitutional
Court.
[10]
In the circumstances, the
appellants are obliged to reinstate respondent. It is a legal duty
which flows from a clear and unequivocal
order of the Supreme Court
of Appeal.
[11]
For these reasons, therefore
the appeal is dismissed with costs.
DAVIS
JA
Ndlovu
and Sutherland JJA concurred
APPEARANCES:
FOR
THE APPELLANTS:
Adv DeVilliers Jansen
Instructed by the State Attorneys
FOR
THE RESPONDENT:
Adv Barry Nortjie
Instructed by Heidi Van Der Meulen
Attorneys
[1]
[2008] ZACC 16
;
2009 (1) SA 390
(CC) at para 36.