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[2016] ZALAC 108
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South African Police Services v Smit and Others (JA98/14; JR2208/2012) [2016] ZALAC 108 (21 January 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Not
Reportable LAC Case No: JA 98/14
Labour
Court Case No: JR 2208/2012
In
the matter between:
SOUTH
AFRICAN POLICE
SERVICES Appellant
and
GERRIT
JOACHIM
SMIT First
Respondent
J
N MTHUKWANE,
N.O. Second
Respondent THE SAFETY AND SECURITY
SECTORAL
BARGAINING COUNCIL Third
Respondent
Heard:
13
November 2015
Delivered:
21
January 2016
Summary:
Arbitrator
correctly
identified
the
true
nature
of
the
dispute
between the parties –
the court
a quo’s
contrary finding
overruled.
Coram:
Waglay JP et Coppin JA et
Savage AJA
JUDGMENT
COPPIN
JA
[1] This
is an appeal with the leave of this Court against the whole of the
judgment and order of the Labour Court
(Ngcukaitobi AJ) delivered on
28 March 2014, reviewing and setting aside an arbitration award of
the second respondent, who acted
as arbitrator under the auspices of
the third respondent, and which referred the matter back to the third
respondent (“
the SSSBC
”) for a hearing
de novo
before a different arbitrator. The appellant (“
the
SAPS
”) was also ordered to pay the first respondent’s
costs.
[2] The
following facts were common cause and are not really disputed. The
employee, Mr Smit, was first employed
by the SAPS on 28 January 1987.
After working for the SAPS in various capacities, he “
purchased
”
his discharge from the service in 1992, whereupon his employment with
the SAPS was terminated. This procedure, whereby an
employee
voluntarily “
purchases”
her or his discharge from
the employment with the SAPS, was recognised and is also provided for
in the regulations. In effect, the
parties agree to the employee’s
termination and it is not like a resignation which constitutes a
unilateral act. Following
upon his discharge the employee would be
paid out his or her pension benefits.
[3] In
2001 Mr Smit successfully re-applied for employment at the SAPS and
he was re-appointed on 3 December 2001
in the position of
Detective-Sergeant.
[4] In
2007 Mr Smit, desirous of assisting his wife with the raising of
their newborn child, and in order to complete
his studies, applied
for 1 year’s unpaid leave. This was refused.
[5] It
so happened that in the same year Mr Smit was involved in a
motorcycle accident which resulted in him suffering
a foot injury
which rendered him unable to walk. He was bedridden and unable to
work.
[6] While
he was at home, recuperating from his injuries, he was visited by his
commander, Lieutenant-Colonel Tshabalala
to whom he gave a doctor’s
letter to confirm his unfitness for work. Mr Smit accepted assurances
from Lieutenant-Colonel
Tshabalala that his sick leave application
would also be taken care of.
[7] It
appears that the application for sick leave was not processed. In
about May 2008 Mr Smit was advised that
he could purchase his
discharge from the SAPS. An official, Mr Sekhweni from the SAPS,
visited him at home and requested him to
sign a discharge form,
advising that if he did not purchase his discharge his salary would
be stopped.
[8] According
to Mr Smit he signed the form which, but for the inclusion of his
personal details, was blank. Together
with that form he signed a
request to withdraw his pension benefits on the basis of his
voluntarily discharge from service.
[9] From
the evidence it appears that on or about 27 May 2007 an inventory had
been printed indicating that Mr
Smit had handed back his SAPS
work-related items, including handcuffs, ammunition and firearms. An
exit form was also completed
in which,
inter alia,
it was
certified that the items were handed in and that there was no
disciplinary action pending against him. Of significance, there
was a
section, which was signed certifying that Mr Smit had no outstanding
medical certificates. This despite the fact that his
request for sick
leave had not been granted by the time his application for discharge
was submitted to the SAPS.
[10] Subsequent
to the submission of his application for a voluntary discharge and
for the payment of his pension
benefits and during about July 2008,
Mr Smit’s salary was stopped by the SAPS.
[11] The
stopping of his salary appears to have been due to a perception at
the SAPS that Mr Smit was on unpaid
leave, even though he had been
refused leave.
[12] Towards
the end of 2008 Mr Smit’s salary was still not paid and he had
not been given information about
his discharge or his pension. He
made enquiries at the SAPS and was informed that his application for
a discharge had not been
processed as yet because the SAPS was
awaiting a letter from the Sandton Police Station.
[13] According
to Mr Smit the delay in determining his request for a discharge
resulted in him changing his mind
about his discharge. In October
2008 Mr Smit spoke to a Lieutenant-Colonel Sharpe and
inter alia
informed him that he had decided to withdraw his application for
a discharge.
[14] It
is not disputed that Lieutenant-Colonel Sharpe spoke to a Director
Basson about this, who, in turn, advised
that Mr Smit should put his
request in writing. Mr Smit complied and he was subsequently informed
by the Provincial Office that
they were awaiting documents from head
office in order to process his request for the withdrawal of his
discharge.
[15] Delays
resulted in Mr Smit approaching Mr Bushy Engelbrecht, who at the time
was Assistant Commissioner and
Cluster Commissioner for Alexandra and
who, in the presence of a Captain Taljaard, agreed that Mr Smit could
withdraw his request
for a discharge. It is on record that a letter
was written on 13 August 2009 by Mr Engelbrecht to the head office –
Head
of Service Terminations in the SAPS, informing them that Mr Smit
had withdrawn his request for a discharge, recommending his
re-enlistment
in the SAPS and requesting that the matter be finalised
quickly.
[16] Steps
were taken in respect of Mr Smit’s re-enlistment in the SAPS.
On record is a letter written by
a Senior Superintendent who was the
Section Head of Personnel, Provisioning and Maintenance to the
Provisional Commissioner, informing
that there had been fifty
persons’ names who had been sent for re-enlistment and that Mr
Smit was one of those and requesting
a report-back on the matter. The
printout from a central database of the SAPS confirmed that Mr Smit’s
re-enlistment request
was in the process. There was also an email
dated 17 June 2010 written by or on behalf of a J Rademeyer which
stated that Mr Smit’s
absence could no longer be regarded as
leave without pay and that he should be re-enlisted in the SAPS.
[17] It
was not disputed by the SAPS that it never informed Mr Smit that his
application for a discharge was finalised.
The SAPS in their
answering affidavit in the review application admitted as much and
that Mr Smit’s employment had not been
terminated by the
discharge. The SAPS contended that by requesting a discharge Mr Smit
had resigned and that as resignation was
a unilateral act he could
not withdraw his “
resignation
”. Ironically, the
SAPS in their answering affidavit nevertheless admit that Mr Smit had
informed Lieutenant-Colonel Sharpe
in October 2008 that he was
withdrawing his request for a discharge.
[18] However,
on 3 May 2010 Brigadier M Jamieson, the Head of Employee Relations
and Lifecycle Management at the
SAPS, wrote a letter to the Gauteng
Provincial Commissioner informing that Mr Smit’s withdrawal of
his application for a
discharge had not been approved.
[19] On
or about 1 July 2010 Mr Smit referred the dispute to the SSSBC. He
essentially complained about the contradictory
messages he was
getting from the SAPS pertaining to his re-enlistment and his
discharge. For example, he received an email on 17
June 2010 stating
that the SAPS were now processing his discharge and that he would
have to apply for re-enlistment. He averred
that it was contrary to
what he was told and what had been agreed to. He complained about the
delay in finalising the process.
He alleged a failure by the SAPS to
reinstate him in terms of the agreement and sought relief in the form
of reinstatement and
back-pay for the period during which he was
awaiting the processing of the withdrawal of his discharge.
[20] The
arbitrator formulated the issue to be decided as follows:
“
I am required to
determine whether there was an agreement between the applicant and
the respondent to reinstate or re-employ the
applicant in accordance
with the provisions of section 186(2) of the Labour Relations Act 66
of 1995, as amended (the Act).”
[21] Mr
Smit testified at the arbitration proceedings and called two
witnesses namely Mr Steven Sikhweni and Mr
Benjamin Taljaard. The
appellant (who was the respondent in the arbitration proceedings)
called two witnesses to give evidence
on its behalf namely, Ms
Isabella Wiese and Ms Jeannette Basson.
[22] Briefly,
the thrust of Mr Smit’s evidence was as summarised above,
namely, that he was advised to purchase
his discharge; that he signed
forms but due to the delay in that regard he decided to withdraw his
application for a discharge;
that he had not been informed of the
decision regarding his discharge or that the withdrawal of his
discharge had been accepted.
The essence of Mr Steven Sikhweni’s
evidence was that Mr Smit did not want to resign, but was forced to
resign when his application
for unpaid leave was not granted. Mr
Sikhweni had accompanied the HR officer to Mr Smit’s residence
where Mr Smit signed
the resignation document.
[23] Mr
Taljaard testified in essence that he was employed in Mr
Engelbrecht’s office and that part of his
duties was to deal
with the re-enlistment of members. He wrote a letter to the head
office of the SAPS in August 2009, on the instruction
of Mr
Engelbrecht, requesting Mr Smit’s reinstatement. He also
testified that there was an agreement between Mr Smit and
Mr
Engelbrecht that Mr Smit would start to work immediately.
[24] Ms
Wiese testified that as Captain in the SAPS Provincial Office part of
her duties were to deal with the
re-enlistment of members. If a
person applied for re-enlistment he or she was to complete an
application form, which had to be
submitted to her department. They
would then prepare a report on the matter for the attention of the
Provincial Commissioner. In
the case of Mr Smit they had received an
application for re-enlistment and the report was submitted to the
Provincial Commissioner
on 8 December 2009. The Provincial
Commissioner did not recommend Mr Smit’s re-enlistment. She
testified regarding the reasons
why the Provincial Commissioner
decided accordingly. According to her, it was because Mr Smit had
resigned twice already and did
not appear to be loyal to the SAPS.
According to her the application for a re-enlistment (after the
Provincial Commissioner had
seen it) would be sent on to head office
at the SAPS, because it was for the National Commissioner to make a
final decision on
the matter.
[25] Ms
Basson testified in brief that she was Head of Personnel Services at
the SAPS Provincial Office. Part of
her duties related to dealing
with service terminations, the reinstatement of members, leave and
the transfer of members. According
to her there was no agreement
between the SAPS and Mr Smit that he would be reinstated. She
testified that the only person who
could approve Mr Smit’s
reinstatement (or re-enlistment) was the National Commissioner.
[26] Having
considered the evidence and the submissions made by or on behalf of
the parties the arbitrator concluded
as follows:
“
25.
In
the circumstances I found that the applicant failed to prove on a
balance of probabilities that there was an agreement to reinstate
him. The fact that the applicant sought to withdraw his resignation
was of no consequence once the respondent did not entertain
the
issue. The applicant’s resignation was accepted by the
respondent. [See Essack and Another v Commissioner for Gender
Equality (2000) 21 ILJ 467 (W).]
26. Even
if I were to find that there was an agreement between Mr Engelbrecht
and the applicant that he would be
reinstated, the applicant would
still have failed in his claim. It is trite law that it is only the
National Commissioner who may
employ a person into the respondent’s
service and it follows that it is only the National Commissioner or a
person duly delegated
by him who can enter into an agreement to
reinstate the applicant.
27. The
purported agreement to reinstate the applicant and Mr Engelbrecht
would be of no force and effect
because Engelbrecht did not have the
authority to enter into such agreement on behalf of the respondent.
28. Taljaard
testified that Engelbrecht had powers to ‘hire and fire’
but my view is that he
did not have the authority or powers to
reinstate the applicant into the respondent’s service. My
conclusion is therefore
that the applicant’s claim of an
agreement to reinstate him was not supported by evidence and
applicable law.”
[27] The
arbitrator accordingly dismissed Mr Smit’s claim and made no
order as to costs.
[28] Mr
Smit brought an application in the Labour Court (the court
a quo
)
to review and set aside the arbitrator’s award. The grounds
briefly were the following: Mr Smit averred that the arbitrator
(i)
failed to properly evaluate the evidence and “
completely
misdirected
” himself in finding that he (i.e. Mr Smit) had
not proved an agreement to reinstate him; (ii) made a material error
by failing
to consider the uncontested documentary evidence
confirming his (i.e. Mr Smit’s) version that there was such an
agreement;
(iii) made a material error by “
confusing the
withdrawal of the resignation …, which was a reinstatement,
with the re-enlistment of a member of the SAPS
”; and
(iv) the arbitrator did not state on what basis he preferred and
accepted the evidence tendered by the SAPS; (v) the
arbitrator made
an award which was not rationally justifiable having regard to the
evidence that was before him “
and
misconstrued
the
legal position in finding that there was no
agreement
” between Mr Smit and SAPS “
while there
was overwhelming evidence showing that such an agreement existed and
the reinstatement was processed
”; and lastly, (vi) that a
reasonable arbitrator would not have made the same decision as the
arbitrator.
[29] In
a supplementary affidavit Mr Smit gave a much fuller version of the
events which culminated in the arbitrator
making the award, which was
the subject of the review before the court
a quo
. Mr Smit
inter alia
pointed out “
I made
it
clear from the outset of the arbitration, … that the
issue concerned ‘that there was an agreement for
reinstatement’.
In my referral from, my dispute is clearly
stated as ‘withdrawal of my discharge’. Therefore, the
dispute was not related
to any application to re-enlist
”.
[30] Mr
Smit also took issue with the arbitrator’s award, suggesting
that the arbitrator concluded that his
re-enlistment was
unsuccessful, whereas the evidence indicated the contrary and that
this showed that the arbitrator misunderstood
what the dispute was
about, or simply did not consider the evidence before him.
[31] Mr
Smit also averred that he had presented support for his evidence that
there was a verbal agreement to reinstate
him, but, according to him,
all such documentary evidence, including the printout form the SAPS
database, was not taken into account
by the arbitrator.
[32] Mr
Smit further, in essence, averred that the arbitrator ought to have
found that the documents which he (i.e.
Mr Smit) had relied upon
“
supported the fact
that there was not only an
agreement but a clear meeting of minds that he would return to the
employment with the SAPS
”.
[33]
The
court
a
quo
held
that in terms of the law as laid down in
Sidumo
and Another v Platinum Mines Ltd and
Others
[1]
;
Heroldt v Nedbank Ltd
[2]
;
Toyota
SA Motors (Pty) Ltd v Radebe and Others
[3]
;
and
Telcordia
Technologies Inc v Telkom SA Ltd
[4]
,
misconceiving
the nature of the enquiry is a gross irregularity
and is by
itself reviewable. The court a quo expressed itself on this point as
follows:
“
58. From these
judgments, it is apparent that the ground of review based on
misconception of the enquiry is to be distinguished
from an instance
where an arbitrator acts outside his statutory powers. Misconceiving
the enquiry recognises that the arbitrator
is acting within his or
her jurisdiction. But even when acting within scope an arbitrator
must direct his or her attention to the
real issue which is required
to be decided either in terms of the relevant statute or in terms of
the referral to arbitration or
indeed an issue which was raised in
the evidence before the arbitrator. The failure to address the main
issue presented for arbitration
is an irregularity. But there is a
further leg to the enquiry. The LRA sets the review bar high. It
requires an irregularity to
be ‘gross’ in order to
constitute a reviewable defect. The defect will be regarded as gross
if the real issue has not
been tried as a result of the irregularity
committed by the arbitrator. Unlike the review ground based on
unreasonableness of the
result, this ground is ultimately concerned
with the methods – or the process – of the arbitration.”
[34] Examining
the award against the standard posited by the court
a quo,
that
court concluded:
“
[65] The
arbitration award does not even record the dispute pertaining to the
discharge of the applicant, despite the fact that
it was a pertinent
issue raised before him. It also did not examine or answer this
question at all. It focused on the application
for re-enlistment or
reinstatement, which logically flows from the question whether the
employment relationship terminated in the
first instance. The
implications of the arbitrator’s approach are profound. Had the
arbitrator appreciated the true nature
of the enquiry before him,
namely, whether the applicant had in fact been discharged as required
by regulation 15, he clearly would
have taken a different path
pertaining to the nature of the evidence to be led and the burden of
proof on the disputed items. But
he did not do this. His failure to
enquire into the question of the discharge of the applicant has
prevented a fair trial of the
issues that were before him. That he
had been told by the parties to enquire into the existence of an
agreement to reinstate the
applicant could not possibly divest him of
his primary duty once the evidence was presented and the applicant’s
true case
laid bare before him.”
[35] The
court
a quo
went on to hold that the fact that Mr Smit’s
wife was not allowed to represent him at the arbitration and that he
was therefore
unrepresented, was another factor which ought to have
been taken into account by the arbitrator in “
the
understanding of the true nature of the
enquiry
”.
The court
a quo
concluded that the arbitrator had committed a
gross irregularity in that he had misconceived the nature of the
enquiry resulting
in a failure to resolve the most pertinent aspect
of the applicant’s case. Nonetheless, the court
a quo
went
on to deal with the reasonableness of the outcome.
[36] I
shall first deal with the finding that the arbitrator had
misconceived the true nature of the enquiry and
then deal with the
issue of reasonableness and the other aspects pertaining to this
matter, such as the issue of costs.
Did
the arbitrator misconstrue the nature of the enquiry?
[37] Counsel
for Mr Smit, in support of the court
a quo’s
judgment,
made submissions in the affirmative, whereas counsel for the
appellant submitted that the arbitrator did not only not
misconstrue
the true nature of the enquiry, but was correct in his approach,
handling of and decision on the issue that was before
him.
Discussion
[38]
It
is indeed so that an arbitrator acting in terms of the Labour
Relations Act
[5]
(“
the
LRA
”)
is bound to identify the issues between the parties, albeit with
minimum legal formalities, and is not bound by the parties’
characterisation of the nature of the dispute. This is what was held
by the Constitutional Court in
Cusa
v Tao Ying Metal Industries and Others
[6]
,
albeit with reference to a commissioner acting under the auspices of
the Commission for Conciliation, Mediation and Arbitration
(“
the
CCMA
”).
[39]
Failing
to
identify
the real issue(s) between the parties or mischaracterising the nature
of the dispute between them, is an instance of misconstruing
the true
nature of the enquiry, which, as has been held in
Heroldt
[7]
and
Goldfields
Mining (SA) (Pty) Ltd v CCMA
[8]
,
to be a gross irregularity. However, in
Goldfields
this
Court
held
that
in
the
case
of
a
gross
irregularity,
such
as
misconstruing the true nature of the enquiry, the investigation does
not stop with the establishment that the arbitrator misconstrued
the
true nature of the enquiry, but extends to whether the final outcome
or result
was
unreasonable.
[9]
[40] It
would be a process-related irregularity which will only justify
interference by the reviewing court if
the final decision is one that
a reasonable arbitrator would not have come to.
[41] As
I mentioned earlier, the arbitrator construed the true nature of the
enquiry to be – for him to determine
(in the light of all the
evidence presented) whether there was an agreement between Mr Smit
and the SAPS for the latter to reinstate
(or re-employ) Mr Smit –
and as envisaged in section 186(2)(c) of the LRA.
[42] Section
186(2)(c) of the LRA defines the term “
unfair labour
practice
” as meaning any act or omission that arises
between an employer and an employee involving – (c) a failure
or refusal
by an employer to reinstate or re- employ a former
employee in terms of any agreement.
[43] The
record shows that the arbitrator specifically enquired from Mr Smit,
at the outset of the arbitration
hearing, what the issue was that had
to be determined in the arbitration and that Mr Smit unhesitatingly
affirmed that the issue
was whether there was an agreement between
him and the SAPS to reinstate him.
[44] It
is also important to note that when the matter came before the
arbitrator it had been referred by an order
of the Labour Court back
to the SSSBC for a hearing
de novo,
after the Labour Court had
reviewed and set aside a ruling by another arbitrator in that forum,
when the matter had first been referred
to it, that the SSSBC did not
have jurisdiction to arbitrate the dispute referred by Mr Smit,
because he was no longer in an employment
relationship with the SAPS.
[45] The
Labour Court, that had referred the matter back, held that the plain
wording of section 186(2)(c) of the
LRA, which was the section relied
upon by Mr Smit, entitles a former employee to seek enforcement of an
agreement to reinstate,
or to re-employ him or her.
[46] Another
important factor, or aspect, is that Mr Smit clearly understood the
nature of the enquiry that was
required. He could not seek to enforce
(and allege) an agreement to reinstate him, unless he accepted that
he had in fact resigned.
The enquiry, as Mr Smit himself stated, was
not about whether he (effectively) resigned, but whether he was
reinstated (or re-employed).
Mr Smit specifically states in his
supplementary founding affidavit in the review proceedings, the
following:
“
Much evidence was
led particularly by the first respondent about the fact that I
resigned. This is not in dispute – I resigned
from the first
respondent in May 2008 following a dispute over my unpaid leave.”
[47] Mr
Smit then states in that same affidavit that the “
onus
”
fell on him to prove the agreement with SAPS to reinstate him.
[48] The
true issue before the arbitrator was thus not – and could not
be – whether Mr Smit’s
purchase of a discharge had been
finalised. It could also not have been about whether he was
re-enlisted in the SAPS. He knew that
he was not re-enlisted, but
relied on an alleged agreement of reinstatement, or re- employment,
which he alleged he concluded with
the SAPS, represented by Mr
Engelbrecht. Mr Smit accepted that he had resigned.
[49]
The
act of resignation is a unilateral act and did not require acceptance
by anyone in the SAPS to be effective.
[50]
In
terms of Regulation 15 of the Regulations
[10]
made by the previous Minister responsible for Safety and Security in
terms of the previous Police Act
[11]
a non-commissioned member who had served a continuous period of at
least three years may resign upon giving three calendar months’
prior written notice
of his or
her intention to resign.
Under the
current South African Police Service Act
[12]
section 49(1) only restricts resignation in three circumstances of
necessity as provided in that section. But otherwise there is
no
restriction on resignation. It is only the withdrawal of the
resignation that requires the consent of the National
Commissioner
[13]
thus, unless
withdrawn, the resignation would be final.
[51] A
fundamental ground which the court
a quo
relied upon in coming
to the conclusion that the arbitrator had misconstrued the enquiry
was – according to the court
a quo
– that Mr Smit
“
denied that he resigned or that the employment relationship
had come to an end
”. This is clearly not correct as Mr Smit
confirmed in his supplementary founding affidavit which was before
the court
a quo
. Contrary to what the court
a quo
held,
Mr Smit stated clearly and unequivocally that he had resigned and
that his resignation was not in issue.
[52] Although
Mr Smit claimed a continuing employment relationship, he did so on
the basis of an alleged agreement
of reinstatement or re-employment
which he alleged he had concluded with Mr Engelbrecht (which,
according to him, was binding on
the SAPS).
[53] The
question whether Mr Smit’s application to purchase his
discharge had been finalised, or withdrawn,
was not the real issue
before the arbitrator. In any event, if it had been Mr Smit’s
case that he was in fact still employed
by the SAPS on some other
basis, then the arbitrator could not have dealt with the dispute in
terms of Section 186(2)(c) of the
LRA – which presupposes that
the employee seeks a restoration of the employment relationship by
the enforcement of an agreement
to reinstate or re-employ him or her.
[54] The
court
a quo
seemingly confused the issue of Mr Smit’s
resignation (which required reinstatement), with his purchase of a
discharge, and
the withdrawal by him of that application and his
application for re-enlistment.
[55] The
SAPS had not been called upon to deal with the acceptance or
rejection of the purchase of a discharge,
or the issue of
re-enlistment. The arbitrator in this matter correctly tried the real
issue.
[56] I
shall now consider the second aspect, namely, whether the arbitrator
reasonably concluded that Mr Smit had
not proved that he had
concluded an agreement with the SAPS for his reinstatement.
[57] Counsel
for the appellant stated that the arbitrator’s findings and
conclusions were not only reasonable,
but correct.
[58] Counsel
for Mr Smit on the other hand, argued that the arbitrator could not
reasonably have come to the conclusion
given the evidence. It was
submitted that there was sufficient evidence that Mr Engelbrecht had
agreed to reinstate Mr Smit.
[59] The
arbitrator had found that Mr Smit had failed to produce documentary
proof that he had concluded an agreement
of reinstatement with Mr
Engelbrecht, but the court
a quo
found the contrary, and in
particular, that there were at least three documents that supported
Mr Smit’s claim that he had
concluded an agreement with Mr
Engelbrecht.
[60] According
to the court
a
quo
the first document was
a letter of 13 August 2009, written by Mr Engelbrecht, in his
official capacity, to the Head “
Service Terminations
”
based at the SAPS headquarters in Pretoria. The second being a letter
from Senior Superintendent Stoltz to the Divisional
Commissioner,
which I referred to earlier, in which Mr Smit’s name was said
to be one of fifty submitted for re-enlistment
and the third being an
email dated 17 June 2010, which I also referred to earlier, in which
it was mentioned that Mr Smit’s
absence from work could no
longer be regarded as absence without leave.
[61] If
one considers the contents of the three documents referred to, it is
clear that they do not prove that
Mr Engelbrecht entered into an
agreement of reinstatement with Mr Smit. The court
a quo
in my
view misconstrued those letters as being such proof. The arbitrator’s
finding in relation to the absence of documentary
proof is thus not
only reasonable, but correct.
[62] The
court
a quo
also found that Mr Smit’s version was
adequately supported by that of Mr Taljaard and that Mr Smit had no
need to call Mr
Engelbrecht to prove that an agreement for his
reinstatement had been concluded.
[63] This
finding was in response to the arbitrator’s express concern
that Mr Engelbrecht was not called
in circumstances where the version
of Mr Smit and Mr Taljaard was apparently contradicted by the
contents of the letter of 13 August
2009, in which no mention is made
of an agreement to reinstate or re- employ Mr Smit.
[64] The
letter which has as its subject the “
Re-enlistment
”
of Mr Smit, merely states that Mr Smit had on 24 February 2009
forwarded a letter to withdraw his intended resignation;
that a copy
of that letter was on the file at the addressee’s office; that
the office of Mr Engelbrecht “
recommends
” Mr
Smit’s “
re-enlistment
” and the reason for
such recommendation. The arbitrator’s observations and concerns
are therefore in my view reasonable.
[65] The
court
a quo’s
conclusion that the evidence of Mr Smit
and Mr Taljaard were in the circumstances of the matter conclusive,
is not correct. The
arbitrator could reasonably conclude that their
evidence was not borne out by the documentary evidence, or by the
law.
[66] The
arbitrator in my view reasonably found that it had not been shown
that Mr Engelbrecht had the necessary
authority to conclude an
agreement of reinstatement with Mr Smit. The court
a quo’s
contrary finding, is incorrect.
[67] The
court
a quo
accepted that the overall power of appointments
rested with the National Commissioner, but concluded that such power
could be delegated.
[68] It
is trite that power that is given in terms of a law to a specific
person may only be delegated if the law
so allows. To conclude in the
absence of legal proof that such power could have been delegated and
in the absence of factual proof
that it had in fact been lawfully
delegated to Mr Engelbrecht, is not correct.
[69] The
court
a quo
seemingly accepted that “
on the evidence
which was before the
arbitrator
it
was
not
clear
if
such
power
had
in
fact
delegated
”, but the court
a
quo
went on to conclude that “
in any event
”
its problem with the arbitrator’s finding, that Mr Engelbrecht
had no authority, was that “
if in fact it was true that an
agreement was reached with Engelbrecht as testified by the applicant
it would be unfair on the part
of the SAPS to seek to resile from
such
agreement
”.
[70] Firstly,
this basis of holding the SAPS liable is founded on speculation,
rather than fact. It is assumes
that Mr Engelbrecht had entered into
an agreement with Mr Smit. Secondly, there is nothing to suggest that
the arbitrator was to
consider whether the SAPS was bound on the
basis of some kind of estoppels, or principle of fairness.
[71] The
further grounds of review that were raised by Mr Smit in his review
application were not dealt with by
the court
a quo
and they
were not addressed in argument before this Court and were, seemingly,
abandoned. None of the parties requested us to deal
with such other
grounds or to refer the matter back to the Labour Court. In any event
from an analysis of Mr Smit’s affidavit
it is apparent that
there is no merit in those grounds. The arbitrator’s award in
my view was reasonable in all respects.
[72] There
is no reason why the costs of the review of the award should not have
followed the event. I propose
to only grant the costs of one counsel
in the circumstances. In respect of the costs of appeal, I am of the
view that it is proper
in fairness and in law that there should be no
costs order.
[73] In
the result:
73.1 The
appeal is upheld.
73.2 The
order of the court
a
quo
reviewing and
setting aside the award is set aside and substituted with the
following order:
“
The application
is dismissed with costs.
”
P
Coppin
Judge
of the Labour Appeal Court
Waglay
JP and Savage AJA concur in the judgment of Coppin JA.
Appearances
For
the Appellant: Adv.
G I Hulley SC with Adv. S B Nhlapo
Instructed
by: The
State Attorney, Johannesburg
For
the First Respondent: Adv. G
A Fourie with Adv. Z Ngwenya
Instructed
by: Bouwer
Kobeli Morabe Attorneys
[1]
2008 (2) SA 24 (CC).
[2]
2013 (6) SA 224 (SCA).
[3]
2000 (21) ILJ 340 (LAC).
[4]
[2007] (5) BCLR 503 (SCA).
[5]
Act No 66 of 1995.
[6]
[2009] 1 BLLR 1
(CC) paras [65]-[66]; see also
NUMSA
on behalf of Sinuko v Powertech
Transformers
(Pty) Ltd
[2014]
2 BLLR 133
(LAC) at 138, paras [16] and [17].
[7]
Supra
.
[8]
[2014] 1 BLLR 20 (LAC).
[9]
See
Goldfields
(supra
)
pages 24-25 para [14].
[10]
i.e. the Regulations for the South African Police:
GNR203 of
14 February 1964.
[11]
i.e. the Police Act 7 of 1958.
[12]
i.e. Act No 68 of 1995.
[13]
See Regulation 47 of the South African Police Service Employment
Regulations.