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[2018] ZALAC 13
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National Commissioner of the South African Police and Another v Myers (CA04/2016, C338/2015) [2018] ZALAC 13; [2018] 9 BLLR 882 (LAC); (2018) 39 ILJ 1965 (LAC) (25 May 2018)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA
04/2016
Labour Court
Case no: C338/2015
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/Cross
Appellant
Heard:
25 May 2017
Delivered:
25 May 2018
Summary:
Interpretation of court’s order – principles that the
court’s intention is to be ascertained primarily
from the
language of the judgment or order in accordance with the usual
well-known rules relating to the interpretation of documents
restated
– employee’s dimissal found by the SCA to be unfair and
SCA ordering reinstatement - prior to the reinstatement
order
employee’s position of Unit Commander: Maitland Dog Unit at
salary level 10 restructured and no longer existed and
was merged
with the Faure Dog Unit – a new position of the Cape Town K9
Unit was created and to be occupied by a Lieutenant-Colonel
at salary
level 12. Employer failing to comply with the SCA’s order which
led to the contempt application against it. Labour
Court ordering
compliance with the SCA’s order – Labour Appeal Court
upholding Labour Court’s order - employer
reinstating employee
to the restructured position but at level 10 – employee
contending that employer still not complying
fully with the orders of
the SCA, Labour Court, and LAC respectively as he alleged he was
entitled to the position of Commander
of the K9 Unit, at salary level
12 – this led to the second contempt application wherein the
Labour Court ordered that the
employee be placed at level 12 because
the post had been upgraded at that level –
Appeal
The
employer contends that although the post was restructured and
upgraded at level 12 with an increase of geographical area of
responsibility, the upgrade was not yet implemented and was to be
done in the second phase of the restructuring process -
Held
that:
It
is clear from the answering affidavit that the upgrade of the post to
salary level 12 had not been implemen
ted.
Further
evidence was that Col Du Plessis who occupied the restructured post
from 1 March 2010 until May 2015 when the employee was
reinstated was
at salary level 10. The employee sought to achieve, in the second
contempt application, a promotion ie in rank from
Lieutenant-Colonel
to Colonel − and salary level from 10 to 12.
Relief:
Court finding
that relief of reinstatement at salary 12 ordered by Labour Court in
the second contempt application non consonant
with the
Equity
Aviation
’s judgment - reinstatement aims at putting the
employee back in his old job on the terms and conditions of his
contract of
employment as it stood at the time of his dismissal
unless those terms and conditions of employment attract a right from
time to
time to pay increases or promotion - at the time of his
dismissal, employee had no contractual entitlement to be promoted to
salary
level 12. Nor did he have a statutory right to a
promotion to this level. This is buttressed by the absence of a
single allegation
in the founding affidavit that it was a term of his
contract of employment, or a statutory right, that entitled him to be
promoted
to the higher salary level and rank. No basis existed in law
and fact for the Labour Court to order reinstatement at salary level
12.
Held
that
It
was impermissible for the Labour Court to make an order directing the
SAPS to appoint the employee to the upgraded post of Commander
of the
K9 Unit at salary level 12 retrospectively to 1 March 2011, as
it fetters the discretion of the National Commissioner
under
regulation 30(8) to decide whether to continue to employ him on
implementation of the upgraded post in the future. More so
when the
claim before the court ought to have failed on the basis that the
orders of the SCA, the Labour Court, and the LAC did
not order that
the employee be reinstated at a salary level to which he had never
previously had a legal entitlement.
Application
to adduce new evidence and cross-appeal dismissed on the basis that
there were no exceptional circumstances justifying
the granting of
such application. Moreover, employee seeking to cross-appeal the
extent of the retrospectivity order based on evidence
that was not
before the Labour Court – Appeal upheld with costs- Labour
Court’s judgment substituted with an order
to the effect that
the application is dismissed with costs. Cross-appeal and application
to lead new evidence dismissed with costs.
Coram: Davis,
Landman JJA et Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA:
[1]
The appellants are the National Commissioner of the South African
Police Service (“National Commissioner”) and the
Provincial Commissioner of the South African Police Service: Western
Cape (“Provincial Commissioner”).
[1]
They
appeal against the judgment and order of the Labour Court
(Whitcher J) directing them to
inter
alia
appoint
the respondent, Lieutenant-Colonel Ivan Myers (“Lt.Col Myers”),
to the upgraded salary level 12 post of Commander
of the Cape Town K9
Dog Unit of the South African Police Service (“Police Service”)
at salary level 12, rank of Colonel.
This post is at a higher salary
level and rank than the post he occupied at the time of his
dismissal.
[2] Lt. Col
Myers cross-appeals against the period of retrospectivity of the back
pay ordered in paragraph 30(3) of the order of
Whitcher J, which
reads:
‘
The
applicant must be paid the difference in salary between the lowest
notch on salary level 12 and salary level 10, retrospective
from the
first day of the month following the upgrading of the post to level
12, that is 1 March 2011.’
[3] The
cross-appeal is contingent upon the admission of the new evidence
which Lt. Col Myers seeks to adduce on appeal and cross-appeal.
The
SAPS oppose the cross-appeal and the application to adduce further
evidence on appeal and cross-appeal.
Litigation
History
[4] Lt. Col
Myers was dismissed from the SAPS’ employ on 12 July 2007. At
the time of his dismissal, he occupied the post
of Commander of
Maitland Dog Unit. He challenged his dismissal by referring an unfair
dismissal dispute to arbitration under the
auspices of the Safety and
Security Sectoral Bargaining Council (“Bargaining Council”).
On 3 September 2008, the Bargaining
Council determined that Lt. Col
Myers’ dismissal was procedurally and substantively fair.
[5]
Dissatisfied, he instituted review proceedings in the Labour Court to
set aside the arbitration award. In January 2009, the
Labour Court
set aside the arbitration award and remitted the dispute to the
Bargaining Council for a hearing
de novo
. The SAPS appealed
against this order to the Labour Appeal Court (“LAC”).
The LAC upheld the appeal and replaced the
order of the Labour Court
with one which
among other things
dismissed Lt. Col Myers’
review with costs.
[6]
Lt. Col Meyers appealed against the order of the LAC to the Supreme
Court of Appeal (“SCA”). On 29 November 2012,
the SCA
upheld the appeal ordering the SAPS “to reinstate [Lt. Col
Myers] to the position he held before his dismissal”
retrospective to the date of dismissal (“SCA order”).
[2]
First
contempt application
[7] At the time
of his dismissal on 12 July 2007, Lt. Col Myers held the rank of
Lieutenant-Colonel in the Police Service as Unit
Commander: Maitland
Dog Unit at salary level 10. After Lt. Col Myers’ dismissal and
before the SCA ordered his reinstatement,
specific developments
occurred in the Police Service which impacted on his eventual
reinstatement. First, a national restructuring
of the Police Service
had commenced on 4 September 2008. As a result of the implementation
of the first phase of the restructuring,
all posts were declared
vacant.
[8] Second, the
Maitland Dog Unit no longer existed on its establishment as it
amalgamated with the Faure Dog Unit. The amalgamated
unit became
known as the Cape Town K9 Unit (“the K9 Unit”). The
amalgamation resulted in an increased geographical
area and
responsibility. This led to the creation of a new post at salary
level 10 on the establishment, i.e. Commander of the
Cape Town K9
Unit to be occupied by a Lieutenant-Colonel (“the restructured
post”). The National Commissioner took
a decision to upgrade
this post to salary level 12; to be occupied by a Colonel (Senior
Superintendent). Although the upgrade of
the post had been approved
on the 2009/2010 Resource Allocation Guide (“RAG2009/2010”)
in June 2009, it formed part
of the second phase of the restructuring
process to be implemented in that phase (“upgraded post”).
[9] Lastly,
Lieutenant-Colonel Du Plessis (“Lt. Col Du Plessis”) was
in occupation of the restructured post (at salary
level 10) when the
SCA ordered the SAPS to reinstate Lt. Col Myers to the post he
occupied before his dismissal. It was the restructured
post occupied
by Lt. Col Du Plessis that most closely resembled the post which Lt.
Col Myers occupied before his dismissal.
[10] In the
light of this, the SAPS formed the view that it could not, in
compliance with the SCA order, simply remove Lt. Col Du
Plessis from
the restructured post and reinstate Lt. Col Myers to it. In an
attempt to comply with the order of the SCA, the SAPS
offered Lt. Col
Myers several posts of equal rank and salary to the salary level 10
post he occupied in the Dog Unit at the time
of his dismissal, so
that he would be in the same type of post, and at the same salary
level as at the date of his dismissal.
[11] These posts
were for “visible policing” and not the K9 Unit, but
despite Lt. Col Myers’ protestations to
the contrary, the
Provincial Commissioner addressed a letter to him, on 21 January
2013, requiring him to report for duty, at Ravensmead
Police Station
as Visible Policing Commander. This was a salary level 10 post at
rank Lieutenant-Colonel.
[12]
Aggrieved at the SAPS’ purported failure to comply with the
order of the SCA, Lt. Col Myers applied to the Labour Court
for an
order holding the SAPS in contempt of court (“first contempt
application”). On 28 January 2014, the Labour Court
(Steenkamp J) dismissed this application, but deemed it in the
interests of justice to grant an order directing the SAPS to
comply
with the SCA order by ordering them to “reinstate … [Lt.
Col Myers] into the position of Commander of the Cape
Town Dog Unit
(or K9 Unit) at Maitland with retrospective effect to the date of his
dismissal” (“Steenkamp J order”).
[3]
[13]
The SAPS only appealed against that part of Steenkamp J’s
order that directed Lt. Col Myers’ reinstatement
as Commander
of the K9 Unit. Lt. Col Myers, in turn, cross-appealed against the
order dismissing the contempt application. On 10
April 2015, the LAC
dismissed both the appeal and cross-appeal, and ordered the SAPS to
reinstate Lt. Col Myers to the position
of Unit Commander of the K9
Dog Unit (“the LAC order”).
[4]
Second
Contempt Application
[14]
Just two weeks later, on 24 April 2015, the Provincial Commissioner
wrote to a certain Colonel JP Visser (“Colonel Visser”)
and the Provincial Commander: Emergency Services notifying them that
“[t]he job description of Colonel Visser must be changed
to a
job description of Unit Commander K9 Services”.
The
letter indicates that Col. Visser was placed in the post of Unit
Commander: Cape Town K9 years back, but continued to perform
duties
as K9 & Mounted Unit Co-ordinator in a post that did not exist in
the current structure on that level. It was Colonel
Visser’s
purported placement as Unit Commander of the K9 Unit that seemingly
triggered a further contempt application in
the Labour Court.
[15] Hence, on 4
May 2015, Lt. Col Myers instituted a second application in the Labour
Court for
among other things
an order:
(a)
compelling the SAPS to comply with the SCA order, the Steenkamp J
order and the LAC
order (“first order”);
(b)
holding the SAPS in contempt of court in the event of non-compliance
with the first order;
and
(c)
committing the SAPS to imprisonment for 15 days in the event of
non-compliance with
the first order (“second contempt
application”).
[16]
Lt.Col Myers alleged, in the second contempt application, that
subsequent to the LAC’s dismissal of the appeal against
the
Steenkamp J order, he received no confirmation from the SAPS that
they intended to comply with any of the court orders issued
up to
then, despite placing evidence before the Labour Appeal Court
demonstrating that Lt. Col Du Plessis had been promoted
to fill
his post.
He
also alleged that on 24 April 2015, the SAPS had in violation of his
rights appointed Colonel Visser as Unit Commander of the
K9 Unit.
[17] However, on
5 May 2015, a day after the second contempt application was served on
the State Attorney, but before he became
aware of that application,
the Provincial Commissioner, in a letter of the same date, withdrew
Colonel Vissers’ placement
on the basis that it was erroneously
made. Colonel Visser was expressly notified in the letter that he was
“not placed in
the post of Commander: Cape Town K9 Unit”
and that he “must continue in [his] duties at Provincial
Emergency Services”.
[18] On the same
day, the Acting Provincial Commissioner also wrote to Lt. Col Myers
requiring him to
report
at the Cape Town K9 Unit as Commander
with immediate effect. The letter confirmed his appointment to the
post of Commander at salary
level 10. This post was of equal rank and
salary level to Lt. Col Myers post before his dismissal, and that of
Lt. Col Du Plessis,
the incumbent. On 6 May 2015, Lt. Col Myers
took up his post as Commander of the K9 Unit and immediately took
leave.
[19] On 7 May
2015, Lt. Col Myers wrote to the Provincial Commissioner contending
among other things
that he was “still not complying
fully” with the orders of the SCA, Labour Court, and LAC
respectively. In paragraphs
6 and 7 of the letter, Lt. Col Myers
claimed that he was entitled to the position of Commander of the K9
Unit, because the affidavits
filed on behalf of the SAPS refer to the
post as a level 12 post, and that the retrospective effect of the SCA
order “also
includes all promotions if such were due”.
The
judgment
of
Whitcher J
[20] The Labour
Court (per Whitcher J) accepted that Lt. Col Myers had occupied
the post of Commander of the Maitland Dog Unit
at salary level 10 at
the time of his dismissal. It, however, granted an order directing
the SAPS to:
(a)
comply
fully with the SCA order, the Steenkamp J order and the LAC order.
(b)
appoint
Lt. Col Myers to the lowest notch at salary level 12 with the
associated increment to rank of Colonel; and
(c)
pay
Lt. Col Myers the difference in salary between salary level 10 and
the lowest notch on salary level 12, retrospective to 1 March
2011
(the first day following the upgrade of the post to level 12).
[21] In support
of the order granted, the Labour Court’s (Whitcher J) reasoned
as follows:
‘
Since
the SCA judgment and despite the subsequent Steenkamp J and LAC
orders, the Provincial Commissioner “misunderstood the
true
scope of the relief of reinstatement” because, but for his
unfair dismissal, Lt. Col Meyers would have, post the merger
of the
two dog units, occupied the regraded post (meaning at Salary
Level 12 : Rank Commander
[5]
) as
the National Commissioner “possessed the powers, in
terms of regulation 30(8) of the South African Police
Services
Employment Regulations (“SAPS Employment Regulations”),
[6]
to
have enhanced [Lt.Col Myer’s] grade. And [w]hile it is not a
certainty the [National Commissioner] would have elected to
continue
to employ [Lt. Col Myers] in the upgraded post this was by no means
unlikely’.
[22]
Whitcher J rejected the SAPS’ contentions that as regarding
regulation 30(8) of the SAPS Employment Regulations, when
the
National Commissioner exercises his discretion to upgrade a post as
provided for under sub-regulation (7), he may deal with
it in a
number of ways, only one of which includes continuing to employ the
incumbent.
[7]
And
by interpreting the reinstatement order to promote Lt Col Myers to
Colonel will effectively deprive the National Commissioner
of this
discretion.
[23] The Labour
Court (Whitcher J) imposed an
onus
, on the employer, to prove
that the dismissed employee would not, but for his dismissal, have
achieved a promotion which was “plausibly
within his grasp”,
had he not been dismissed. In so doing, Whitcher J held:
‘
In
this case, the very least, in fairness, that one could expect from an
employer wishing to resist the restoration of the full
status
quo ante
for an act of unfair dismissal, is a demonstration in the appropriate
forum that the reinstated employee was unlikely to have achieved
the
contested benefits of advancement that his dismissal prevented him or
her from seeking. In my view, to expect an employee to
always
demonstrate a contractual or statutory right to an entitlement, over
and above being taken back into employ, could defeat
fully restoring
the
status
quo ante
.
In
a sense this is as much a question of evidence as legal doctrine. The
[SAPS]
has placed nothing before the SCA, and, indeed, this Court indicating
that [Lt. Col Myers] would not have benefited, as a
specialist
incumbent, from the fact that his post was upgraded while he should
have been in it. As Steenkamp J correctly ordered,
the SCA judgment
meant that [Lt. Col Myers] should be reinstated into the restructured
position. This can only mean at grade 12.
…
I
agree with Mr Nortje, counsel for [Lt.Col Myers], that
Equity
Aviation Services (Pty) Ltd v CCMA and Others
[8]
is
authority for the idea that reinstatement is aimed at placing an
employee in the position he or she would have been but for the
unfair
dismissal. Once an employee has established a particular benefit or
promotion was plausibly within his grasp had he not
been unfairly
dismissed, and this is not rebutted, reinstatement, in fairness,
should include these enhancements to his remuneration
or rank.
’
[24] Despite the
evidence of the SAPS that the upgraded post (level 12) had not
yet been implemented, the Labour Court found
that:
‘
[The
SAPS]
pleaded
that the post in issue was formally upgraded to Level 12 from 1
July 2009. At the hearing of this application
on 3 September
2015,
[Lt.
Col Myers’] counsel accepted the [SAPS’] plea that the
upgrade of the post was only implemented in Phase
2
of the restructuring at the beginning of March 2011
.
’
[9]
[25]
Having concluded that Lt. Col Myers had not made out a case for
“non-compliance with the
various court orders being wilful and
mala fide
”, Whitcher J stated as follows:
‘
Nevertheless
I do intend to place the [SAPS] under time frames to fully implement
the court orders [of the SCA, Steenkamp J in the
Labour Court and the
LAC]. In addition, I believe the sword of a future contempt order
hanging over their heads is in order as
any further delay in fully
‘reinstating’ [Lt. Col Myers] would strongly suggest
mala
fides
and
thus require the court’s more robust intervention. The issues
have been fully ventilated and space for misinterpretation
of the
SCA’s judgment as explained by Steenkamp J, is well and truly
over.’
Issues for
determination
[25] The
questions for determination in the appeal and cross-appeal are these:
In the appeal:
(a)
Whether
the reinstatement of Lt. Col Myers on 5 May 2015 as Commander of K9
Unit at salary level 10, i.e. the restructured post,
was in breach of
the reinstatement order granted by the SCA and elucidated by the
Steenkamp J order; and
In
the cross-appeal:
(b)
If
these orders entitled Lt. Col Myers to be promoted to the rank of
Colonel at salary level 12, i.e.the upgraded post (whether
with
effect from 1 March 2011, or at all), is he then entitled to that
promotion with retrospective effect merely to 4 September
2008 (or as
belatedly asserted to 1 July 2009).
[10]
The Appeal
[26] To
reiterate, this appeal lies against the order of Whitcher J in the
second contempt application. The primary relief sought
by Lt. Col
Myers in that application was for an order compelling the SAPS “
to
comply with
” the reinstatement orders of the SCA, Steenkamp
J in the Labour Court, and the LAC. In support of the relief sought,
he alleged
as follows in his founding affidavit:
(a)
Steenkamp J
had, in the first contempt application in the Labour Court, ordered
the SAPS to reinstate him to the position of
Commander of K9 Unit (at
Maitland) with retrospective effect to the date of his dismissal;
(b)
Lt.
Col Du Plessis had been occupying his post, and he should have been
reinstated into this post; and
(c)
Despite
the orders of the SCA, Labour Court and the LAC, the SAPS had failed
to appoint him to this post, but had instead “hastily”
appointed Colonel Visser to his position on 24 April 2015.
[27] But
reinstatement to his salary level 10 post (which is the relief
ordered by the SCA and by Steenkamp J in the Labour Court)
was not
what Lt. Col Myers had in mind. Remarkably, what he sought to achieve
in the second contempt application was to procure
a promotion –
in rank from Lieutenant-Colonel to Colonel − and salary level
from 10 to 12.
[28]
Lt. Col Myers contended in his founding affidavit, that the letter of
the Acting Provincial Commissioner, dated 24 April 2015,
directing
that Colonel Visser’s job description be changed to “Unit
Commander K9 services”, confirmed that the
post of Commander of
the K9 Unit had been a funded level 12 position since 29 June 2009,
and that he would be entitled to be promoted
to this post with
retrospective effect from 29 June 2009, as “he had the
requisite skills, academic qualifications and experience
as required”
and the SAPS has a legal duty to do so”.
[29] At the
hearing, two contentions were advanced on behalf of Lt. Col Myers in
relation to the SAPS’ legal duty to promote
him to the upgraded
salary 12 post with retrospective effect from 29 June 2009. The first
was that if, between the date of dismissal
and reinstatement, there
have been salary increases, payment of bonuses, post upgrades, an
enlargement of the areas of operational
responsibility attaching to
the reinstated position, then the retrospectively reinstated employee
would be entitled to these benefits.
[30] And the
second was that if the position to which the employee is to be
retrospectively reinstated, has in the interim merged
with another
position, then the reinstatement must be to the merged position.
These are the logical consequences, so it is contended,
of the
reinstatement remedy which is intended to afford protection to the
dismissed employee by restoring the employment contract.
And to deny
the employee these benefits would amount to depriving him or her of
the full benefit of the reinstatement remedy.
[31]
The contention that the reinstatement order of the SCA entitled Lt.
Col Myers to a promotion, with retrospective effect to
29 June 2009
(
ie
approximately two years after his dismissal on 12 July 2007) is
untenable, because it is clear from the allegations of the SAPS
in
the answering affidavit that the upgrade of the post to salary level
12 had not been implemented.
Moreover,
nowhere in his founding affidavit does Lt. Col Myers provide a basis
in fact or law for the assertion that he was entitled
to
retrospective reinstatement at salary level 12 from 29 June 2009.
[32]
However, the SAPS assumed, correctly so, that Lt. Col Myers relied on
this date because it was the date on which the 2009/2010
Resource
Allocation Guide (“RAG2009/2010”) was issued.
Concerning
RAG2009/2010, the SAPS reiterated what it had said, in its answering
affidavit, in the first contempt application, which
is that:
‘
Although
the 2009/2010 Resource Allocation Guide approved the Commander post
at the Cape Town K9 Unit as a Salary Level 12
post in accordance
with the restructuring, the post will only be implemented in the
course of Phase 2 of the restructuring process.
The
implementation of Phase 2 has been delayed for various reasons, and
it is uncertain at this stage when the implementation is
likely to
take place.’
[33] Although
the SAPS admitted that Colonel Visser had been appointed on 24 April
2015 as Commander of the K9 Unit, it explained
that the appointment
was made in error and once this was discovered, the appointment was
retracted in writing on 5 May 2015. And,
on the same day (
i.e.
after the second contempt application had been delivered) it
appointed Lt. Col Myers as Commander of the K9 Unit at salary level
10 − the salary level at which Lt. Col Myers was appointed
before his dismissal, and that of Lt Col Du Plessis, the
incumbent. This is common cause.
Meaning and
Scope of the SCA’s Order
[34] As
indicated, the relief sought by Lt. Col Myers in the second contempt
application, was for an order compelling compliance
with the existing
reinstatement order of the SCA (as elucidated by Steenkamp J and
the LAC’s orders). Crucially for
Lt. Col Myers’ success
in that application, he had to show that his reinstatement by the
SAPS, on 5 May 2015, did not constitute
compliance with the
reinstatement orders of the SCA, Steenkamp J, and the LAC.
[35] Although
the Steenkamp J order relates to the question of SAPS’
non-compliance with the SCA’s order independently
of Whitcher
J’s order in the second contempt application, it is dispositive
of the issue for determination in this appeal.
This is because the
Steenkamp J order which was upheld on appeal by the LAC, definitively
determined, as between the parties, the
meaning and scope of SAPS’
compliance with the order of the SCA. Accordingly, the order still
stands.
[36]
In
Eke
v Parsons,
[11]
the Constitutional Court clarified the principles that apply to the
interpretation of court orders and confirmed the well-established
test on the interpretation of court orders as follows:
‘
The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s intention
is to
be ascertained primarily from the language of the judgment or order
in accordance with the usual well-known rules relating
to the
interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons for giving
it must be
read as a whole in order to ascertain its
intention…’
[37] The purpose
of the Steenkamp J order was to clarify the SCA’s order which
ordered the SAPS to reinstate Lt. Col Myers
to the position he held
before his dismissal. The interpretation contended for by the SAPS,
is that properly construed, the Steenkamp
J order does not direct the
SAPS to reinstate Lt. Col Myers as Commander of the K9 Unit at salary
level 12, whether with retrospective
effect to the date of
dismissal or at all. What it does, they contend, is to direct the
SAPS to reinstate Lt. Col Myers “into
the position of Commander
of the Cape Town Dog Unit (or K9 Unit) at Maitland with retrospective
effect to the date of his dismissal”.
This, they submit, must
be interpreted to mean the restructured post of Commander of the Unit
at salary level 10: rank Lieutenant-Colonel.
[38] Lt. Colonel
Myers, on the other hand, seems to understand “restructured
post” and “upgraded post” to
be synonymous. He
accordingly urges the Court to interpret “restructured post”
to mean “the upgraded post at
salary level 12”. He makes
no distinction between the two posts and contends for an
interpretation of the order that “reinstates
Lt. Col Myers to
the post of Commander of the K9 Unit at salary level 12.
[39] In
interpreting the SCA’s order, Steenkamp J posed and considered
a pivotal question: “What would [Lt. Col Myers’]
current
position have been, had the SAPS not unfairly dismissed him?”
In answer, Steenkamp J observed:
‘
The
dog unit was restructured in 2009. The amalgamated Cape Town Dog Unit
(or “K9 Unit”), still operating from Maitland,
was
established as a single unit. It was headed by a Superintendent at
salary level 10. On 1 March 2010 a new commander was appointed
after
the post became vacant and was advertised. The new incumbent, a
Captain at the time, was promoted to Superintendent (Lt.
Col at
salary level 10) at the time of her appointment. SAPS points out that
that post was upgraded to that of Colonel at salary
level 12 and,
according to SAPS, “will be implemented during the second phase
of the restructuring process. Yet it is common
cause that the
incumbent of the post, [ Lt. Col Du Plessis], is still employed at
salary level 10.’
[40]
Having highlighted the difference between a “job” or a
“position” and the salary level or grade that
the
position attracts, Steenkamp J stated:
‘
There
can be little doubt that, had Myers not been unfairly dismissed, he
would have continued in the post of commander of the Cape
Town Dog
Unit at Maitland, albeit in the guise of the restructured unit.
His
post may have been upgraded in terms of the SAPS Resource Allocation
Guide”; but he would have remained the incumbent.
In those
circumstances, the SCA order must be interpreted to mean that he must
be reinstated into the restructured post of commander
of the Cape
Town Dog Unit at Maitland at the current salary that
the
post attracts, coupled with retrospective backpay.’
[12]
[41] Steenkamp J
makes the important distinction between Lt. Col Myers’ former
post on the one hand, and the “restructured
post” and
“upgraded post” on the other. On a proper construction,
the words “restructured post” must
be interpreted to mean
“the newly established post of Commander of the Cape Town
Dog(K9) Unit” (at salary level 10)
established under the
restructuring − by the amalgamation of the Maitland and Faure
Dog Units. “Upgraded post”,
properly construed would mean
the upgrade of the restructured post
from
level 10 to level
12.
[42] Steenkamp J
accepted the evidence of the SAPS that the upgraded post was yet to
be implemented during the contemplated
second phase of the
restructuring process. And by that position deemed it “in the
interests of justice” to order the
SAPS to comply with the
order of the SCA reinstating Lt. Col Myers to the position he held
before his dismissal. Steenkamp J interpreted
the words “position
he held before his dismissal” to mean “Commander of the
amalgamated Cape Town Unit (or K9
Unit) at Maitland”. Although
the salary level of the post is not expressly stated in the order, it
refers to the “restructured
post” at salary level 10.
This is implicit from reading the order and the judgment as a whole.
[43] Steenkamp
J’s finding on whether the failure of the SAPS to reinstate Lt.
Col Myers into the position of commander of
the K9 Dog Unit was
wilful or
mala fide
bears this out. Steenkamp J held:
‘
I
cannot find, on the facts before me, that it was either [wilful or
mala
fides
.
SAPS believed that it had to “place” Meyers in a position
that attracted the same salary – i.e., at level 10
– as
Meyers earned at the time of his dismissal. The position of commander
of the Maitland Dog Unit attracted that salary
at the time of
dismissal; the post of commander of the amalgamated Cape Town Dog
Unit, on SAPS’ understanding, now apparently
attracts a higher
salary at level 12 (although the incumbent is still paid at level
10). Hence SAPS offered Myers alternative positions
at salary level
10. The stance adopted by SAPS appears to me to be a
bona
fide
one, although I do not agree that it is in compliance with the SCA
order… .
In
my view, SAPS has not complied with the order of the SCA. That order
contemplated that Myers be reinstated into the post he would
have
occupied had he not been unfairly dismissed. That post, as presently
restructured, is that of commander of the Cape Town Dog
Unit (or K9
Unit) at Maitland.’
[43]
This
interpretation is also consistent with Steenkamp J’s finding
that “the SCA order must be interpreted to mean that
he must be
reinstated into the restructured post of commander of the K9 Unit
at the current salary
that the post attracts
,
coupled with retrospective back pay.’ The use of the phrase
“current salary that the post attracts” must be
given its
ordinary meaning, i.e. the salary level of the restructured post
current to, or at the time of, the reinstatement.
[44] Lt. Col Du
Plessis occupied the restructured post from 1 March 2010 until May
2015, when Lt. Col Myers was reinstated. Although
the restructuring
resulted in an increased geographical area and responsibility, the
post remained a salary level 10 post at the
rank of
Lieutenant-Colonel. When the salary and rank of the post were
upgraded to level 12 in June 2010 under RAG2009/2010, Lt.
Col Du
Plessis was the incumbent. But because the upgrade of the post had
not yet been implemented, the post remained a salary
level 10 one
(i.e. the restructured post).
[45] It was the
restructured post that Lt. Col Myers was entitled to be reinstated
to, and was indeed reinstated to in May 2015
– a post
equivalent in rank and salary level to the post that he occupied
before his dismissal. Put differently, had Lt.
Col Meyers not been
unfairly dismissed in 2009, he would have been the incumbent when the
restructured post was upgraded to salary
level 12 in June 2010.
[46] This
finding is consistent with what Lt. Col Myers deposed to in his
founding affidavit in the application before Steenkamp
J. There he
said:
‘
The
Maitland Dog Unit still exists and has been renamed the Cape Town Dog
Unit which has a Commander. My post had been advertised
as a
promotional post in 2010 and was filled in March 2010 by a Lieutenant
Colonel PJ Du Plessis…She is the Unit Commander
of the Dog
Unit situated at Maitland.’
[47] In a
supplementary affidavit deposed to by Lt. Col Myers in the same
application, he said this about the post:
‘
I
was then informed that my position at the Dog Unit no longer existed
due to what was termed “reorganization and restructuring
that
had occurred in September 2008”. This is disingenuous as:
‘‘
The
Dog Unit still exists as such;
It
recently came to my attention that my
post
was declared vacant in December 2009, and advertised internally as
follows
Status:
Vacant
Post
description: Commander Dog Unit Maitland…”’
[48] In his
replying affidavit to a supplementary affidavit filed by the SAPS in
the same application, Lt. Col Myers unwaveringly
asserted that Lt.
Col Du Plessis, the incumbent in the post, “was promoted into
my post and would not have enjoyed such a
privilege had I not been
unfairly dismissed…”.
[49]
Read
in context, Steenkamp J’s order that Lt. Col Myers be
“reinstated to the position of Commander of the Cape Town
Dog
Unit (or K9 Unit) at Maitland” required no more than he be
reinstated into the post held at the time by the incumbent
–
Lt. Col Du Plessis.
There
can, therefore, be no question that the SAPS had fully complied with
the SCA’s order, by reinstating Lt. Col Myers to
the
restructured
post
of
Commander of the K9 Unit (Maitland) (at salary level 10; rank
Lieutenant-Colonel) with retrospective effect to the date of his
dismissal.
[50] The LAC’s
observations in its judgment confirm the correctness of Steenkamp J’s
order:
‘
When
the [SAPS] restructured the organization 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 [Lt. Col Myers] to
have been successful in his litigation, [SAPS]
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 the [SAPS’] who risked
the possibility
that successful litigation by [Lt. Col Myer] would place them in a
difficult position regarding reinstatement.
…
In
the circumstances, the [SAPS] are obliged to reinstate [Lt. Col
Myers]. It is a legal duty that flows from a clear and unequivocal
order of the Supreme Court of Appeal.’
Whitcher J’s
Order inconsistent with Equity Aviation
[51] Thus once
clarity on the meaning and scope of the SCA’s order was
established by the Labour Court (Steenkamp J) and the
Labour Appeal
Court, that ought to have been the end of the matter – but as
we know − it was not. Following on the
LAC’s order was
that of Whitcher J’s in the second contempt application
directing the SAPS to appoint Lt. Col Myers
to the upgraded post at
salary level 12 and to promote him to Colonel.
[52]
Whitcher J’s order is inconsistent with the meaning of
“reinstatement” as articulated by the Constitutional
Court in
Equity
Aviation Services (Pty) Limited v Commission for Conciliation,
Mediation and Arbitration
,
[13]
which
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”.
Equity
Aviation
established the principle that where an employee is reinstated by the
employer, he or she resumes employment on the same terms
and
conditions that prevailed at the time of the dismissal of the
employee. This means that the employer does not conclude a new
contract when reinstating a dismissed employee. It merely restores
the employment relationship to what it was before the dismissal.
[14]
[53] The Labour
Court erroneously imposed an
onus
, on the SAPS, to prove that
the dismissed employee would not, but for his dismissal, have
achieved a promotion which was “
plausibly within his grasp
”,
had he not been dismissed. A reinstatement order imposes no such
burden on the employer. It is directed at putting the
employee back
in the position he or she was before the dismissal. Although a claim
by a reinstated employee that, but for his dismissal,
he would have
achieved a promotion might give rise to a plausible unfair labour
practice claim, this does not mean that reinstatement
at the salary
level and rank at the time of the dismissal would amount to a breach
of the reinstatement order. The Labour Court,
therefore, erred in
arriving at a contrary finding.
[54]
The Steenkamp J order correctly reflects the finding of the
Constitutional Court in
Equity
Aviation
,
which requires no more of the employer than that it put back the
employee in the same job or position that he or she occupied
before
the dismissal “
on
the same terms and conditions
”.
A reinstatement order restores the previous contract of employment
between the dismissed employee and the employer. The
right of the
employee to be remunerated arises from the restoration of the
contract of employment on reinstatement, and not from
the
reinstatement award itself.
[15]
This
would mean that any remuneration payable to the employee arising from
the contract of employment becomes due to that employee.
[16]
[55]
Thus, as held by the Labour Court in
Themba
v Mint Road Sawmills (Pty) Ltd,
[17]
a
reinstated employee is, “as a matter of general
principle…entitled to be paid his contractually agreed
remuneration,
as it existed in terms of his contract of employment
when he was dismissed ”.
[18]
However,
as relating to the question of a salary increase on reinstatement,
the Labour Court in
Themba
held that the employee must demonstrate that:
‘
[H]e
has the right to such increase in terms of his contract of employment
… Any right he has to payment must be founded
on his contract
of employment in turn, or on the applicable collective agreement, or
finally on applicable statutory instruments
(such as the BCEA). This
means that the applicant has to show a contractual or statutory right
to an increase, in order to be able
to claim [a salary
increase]”.
[19]
…
Accordingly,
and simply put, if the applicant cannot show an actual contractual or
statutory right to an increase … he simply
cannot claim it.
The fact that other employees may have received increases pursuant to
an agreement concluded between the employer
and other individual
employees, in particular, cannot assist the applicant in establishing
a right to an increase’.
[20]
[56] The
question relating to the remuneration the employee would, but for his
dismissal, probably have received is irrelevant.
The only relevant
question relating to this aspect is what his legal rights are,
arising either from his contract of employment
or any applicable
statute?
[57] What then
are Lt. Col Myers’ rights arising either from his contract of
employment with the SAPS or from statute?
[58] Lt. Col
Myers’ case in support of a right to the salary level 12 post,
is that the employer was obliged to promote him
to that level with
effect from 4 September 2008, alternatively June 2009 being the
purported date of the upgrade to level 12 of
the K9 Unit Commander
post.
[59]
Reinstatement with retrospective effect means putting the employee
back in his old job on the terms and conditions of his contract
of
employment as it stood at the time of his dismissal. If those terms
and conditions of employment attract a right from time to
time to pay
increases, such increases will fall to be paid as part of the
retrospective reinstatement order. But where absent the
reinstatement
order itself, the employee has no contractual or statutory right to a
pay increase or to a promotion to a higher
salary level or rank, a
reinstatement order does not confer such right.
[60] Crucially,
at the time of his dismissal, Lt. Col Myers had no contractual
entitlement to be promoted to salary level 12.
Nor did he have a
statutory right to a promotion to this level. This is buttressed by
the absence of a single allegation in Lt.
Col Myers’ founding
affidavit that it was a term of his contract of employment, or a
statutory right, that entitled him to
be promoted to the higher
salary level and rank.
[61] Lt. Col
Myers simply alleged a right to have been promoted to Level 12
with effect from 29 June 2009 (or is it 4 September
2008), without
providing any factual allegations in support of such a right. He
furthermore failed to give a reason in his founding
affidavit for
selecting 29 June 2009, as the date from which his alleged
entitlement to a promotion would have retrospective effect,
although
this was probably based on the date of the SAPS’ approved
RAG2009/2010 which was 29 June 2009. The RAG2009/2010
provided for a
level 12 post to be occupied by a Senior Superintendent (Colonel) at
the K9 Unit.
[62] When
challenged during argument to demonstrate where reliance on 29 June
2009 was pleaded in the founding affidavit, Lt. Col
Myers pointed to
the allegation in his founding affidavit, where he states that:
‘
[T]he
answering affidavits filed by the SAPS opposing the contempt
application in the Labour Court in 2013 [referring to the first
contempt application], claimed for the very first time that the post
of Unit Commander was upgraded on 29 June 2009 to a level
12 post,
whilst it was a post level 10 at the time of my dismissal.’
[63]
As correctly submitted on behalf of the SAPS, this allegation is a
secondary fact or inference for which no primary facts are
alleged
which support Lt. Col Myers case that the salary level 12 post was
implemented by 29 June 2009 or at all.
[21]
Nor
do the allegations in his founding affidavit referencing the
placement letter addressed to Visser, on 24 April 2015, confirm
that
the upgraded post was implemented on 29 June 2009. You will recall
that the placement letter was erroneously issued by the
Acting
Commissioner and subsequently retracted, when the error was
discovered.
[64] It is not
disputed by the SAPS that since 29 June 2009, approval in principle
has existed for a level 12 post for the Commander
of K9 Unit. SAPS
have, nevertheless, repeatedly asserted on affidavit that the upgrade
of the post has not yet been implemented,
and will only be
implemented at some unknown future date, as part of a “phase
two” restructuring.
[65] Lt. Col
Myers contends that this is a bare denial that can be robustly
rejected as it does not give rise to a dispute of fact.
I disagree.
In the light of a complete absence of any factual assertions in Lt.
Col Myers’ founding affidavit calling for
a more complete
answer, his call for this evidence to be disbelieved must be rejected
out of hand. In particular, because he was
fully aware from the
stance adopted by the SAPS in the first contempt application, that
they have consistently contended that the
upgrade to level 12 had not
yet been implemented. There is nothing in the founding affidavit that
vaguely suggests otherwise.
[66] Steenkamp
J, in his judgment in the first contempt application, also accepted
the evidence of the SAPS that the upgraded post
at salary level 12
will be implemented during the second phase of the restructuring
process. Steenkamp J’s order was upheld
on appeal to the LAC,
and the LAC’s order was not appealed against to the
Constitutional Court. It is a definitive finding
that ought to have
been followed by Whitcher J.
[67]
Accordingly, on the basis of the rule in
Plascon-Evans
[22]
(and
on the basis that this fact was accepted by Steenkamp J in his
judgment in the in first contempt application), the Labour Court
(Whitcher J) ought to have accepted that the upgraded post at salary
level 12 had not yet been implemented and would only be implemented
at some unknown future date.
[68]
Whitcher J’s failure to accept this fact caused her to make her
order retrospective to 1 March 2011, on the erroneous
basis that the
upgrade of the post was implemented in phase two of the SAPS
restructuring at the beginning of March 2011. She did
this inspite of
the uncontested evidence of the SAPS that the upgrade of the post to
salary level 12 would be implemented during
the second phase of the
restructuring which had not yet occurred.
[69] There
was,accordingly, no basis in law and fact for the Labour Court
(Whitcher J) to find, in the face of the SAPS’s
denials and
Steenkamp J’s judgment in the Labour Court, that the salary
level 12 post had been implemented on 1 March 2011.
SAPS
Employment Regulations
[70] In terms of
regulation 30(7) of the SAPS Employment Regulations, the National
Commissioner may in the exercise of his discretion
increase the
salary of a post to a higher salary level to accord with its job
weight. Regulation 30(8) provides,
inter alia
, that if the
National Commissioner “
increases the salary of a post
”
(as contemplated in sub-regulation (7)), the National Commissioner
must either transfer the incumbent employee to another
post which
accords with his salary level and advertise the vacant post at the
higher salary level or, in the exercise of his or
her discretion, may
retain the employee in the higher graded post without advertising it,
if the incumbent employee already performs
the duties of the posts;
the incumbent has received a satisfactory rating in his or her most
recent performance assessment; and
it will be in the interests of the
Service.
[71] Regulation
30(9), in turn, provides that if the National Commissioner retains
the incumbent employee, the latter must be absorbed
in the higher
graded post from the first day of the month following the month in
which the incumbent employee’s absorption
is approved. And, the
incumbent’s salary will be adjusted to the lowest notch of the
higher salary with effect from the aforesaid
date.
[72]
Having acknowledged the discretion which the SAPS Employment
Regulations confer upon the National Commissioner, Whitcher J
held
that the National Commissioner exercised this discretion “albeit
spurred by the recent rulings of the Labour Court and
LAC, to place
the applicant in the upgraded post of the Cape Town Dog Unit without
advertising the position”. This finding
is wrong because the
SAPS reinstated Lt. Col Myers in compliance with the orders of the
SCA, Labour Court and the LAC, which are
binding on the SAPS. The
National Commissioner had no discretion to exercise as relating to
the implementation of these orders
as the SAPS was obliged to
reinstate Lt.Col Meyers “to the position he held before his
dismissal” because, as held
by the LAC, “it is a legal
duty which flows from a clear and unequivocal order of the Supreme
Court of Appeal”.
[23]
[73] The Labour
Court was also wrong in concluding that the National Commissioner’s
discretion is limited by order of reinstatement
to the restructured
post of Commander K9 Unit with salary level 12. This was not an issue
considered or determined by the SCA or
by Steenkamp J in the
first contempt application. In other words, neither the order of the
SCA nor that of Steenkamp J
directed the SAPS to place Lt. Col
Myers in a salary level 12 post at rank Colonel. All that was
required of the SAPS was to reinstate
him to the post then occupied
by Lt. Col Du Plessis (at salary level 10). That is
unquestionably what the National Commissioner
did on 5 May 2015.
[74]
Since the upgraded post to Level 12 will only be implemented at
some future date when Phase 2 is implemented, it
will only be
open to the National Commissioner to exercise his discretion under
regulation 30(8) of the SAPS Employment Regulations
at that stage. In
South
African Police Service v Public Servant’s Association,
[24]
the
Constitutional Court considered the meaning of the word “may”
in regulation 30(8) of the SAPS Employment Regulations,
and held as
follows:
‘
It
follows from the above that the regulation must be read in such a way
as best to harmonize two major considerations that could
collide with
each other. The first is the need to give the Commissioner the
necessary flexibility to strengthen the leadership
capacity of the
service in a transparent manner. The second is the requirement that
incumbents whose work is satisfactory should
not be subjected to the
anxiety of possibly losing their jobs simply because their posts are
being upgraded.
…
[35]
It follows then, that subject to the qualification mentioned below,
“may” in the context of this case does not
mean “must”.
The Commissioner has a discretion and is accordingly entitled to make
a declaration that although he is
authorised without advertising to
promote an incumbent whose job is upgraded, he is not obliged to do
so. The declaration should,
however, be qualified by a further
declaration that the Commissioner’s discretion must be
exercised in a manner which does
not place an incumbent who is
performing satisfactorily in jeopardy of losing his job in the
service simply because his or her
post is being upgraded.”
[75] Regulation
30(8) of the SAPS Employment Regulations confers a discretion upon
the National Commissioner to decide whether to
employ the incumbent
employee in a post where he increases the salary in terms of
regulation 30(7) thereof. Salary level 12 carries
a substantially
bigger salary than what Lt. Col Myers receives in his current
position. The post once implemented will require
an officer at the
rank of Colonel. Significantly, in this regard, even if Lt. Col Myers
were not dismissed, and remained in the
post as the incumbent, it
would not have automatically followed that he would have been
appointed to the upgraded post at salary
level 12.
[76] Lt. Col
Myers is the incumbent of the upgraded post. It is only on
implementation of this post at some date in the future,
that the
National Commissioner’s discretion to decide whether to
continue to employ him in the upgraded post will be triggered.
In the
absence of having exercised his discretion in terms of regulation
30(8) on this question, there can be no duty on the National
Commissioner to present evidence to show that Lt. Col Myers would not
have qualified to meet the requirement of the post. Whitcher
J,
therefore, erred in finding that there was such a duty.
[77]
Accordingly, it was impermissible for the Labour Court to make an
order directing the SAPS to appoint Lt.Col Myers to the upgraded
post
of Commander of the K9 Unit at salary level 12 retrospectively
to 1 March 2011, as it fetters the discretion of the National
Commissioner under regulation 30(8) to decide whether to continue to
employ him on implementation of the upgraded post in the future.
[78] The orders
granted by the SCA, the Labour Court (per Steenkamp J) and the
LAC do not purport to fetter the exercise of
the National
Commissioner’s discretion. They do no more than direct
the SAPS to reinstate Lt. Col Myers to the post,
salary level and
rank that he held prior to his dismissal, with retrospective effect
to the date of his dismissal. An application
to enforce these orders,
as we have in the second application before Whitcher J, does not
authorize that court to over-ride the
SAPS Employment Regulations or
deem them to be applied when this is not factually the case.
[79]
Accordingly, on the evidence that served before Whitcher J in the
Labour Court, Lt. Col Myers had failed to establish any legal
right
to be appointed at salary level 12, retrospective to his dismissal.
The claim before her ought to have failed on the basis
that the
orders of the SCA, Labour Court (Steenkamp J), and the LAC did not
order that Lt. Col Myers be reinstated at a salary
level to which he
had never previously had a legal entitlement.
Application
to adduce new evidence on appeal/cross-appeal
[80] There is,
however, the new evidence which Lt. Col Myers seeks to adduce on
appeal and on cross-appeal. The new evidence consists
of duty lists
and payrolls for the Dog Unit for the period during his absence,
which he allegedly had no access to or knowledge
of. He contends that
the new evidence is germane to the appeal and cross-appeal as it
shows that the upgraded post of Unit Commander
of the K9 Unit had
already been implemented, funded and occupied as early as September
2008. He claims that the new evidence only
came to his attention
after the hearing of the second contempt application before Whitcher
J in the Labour Court.
[81]
Although section 174(a) of the LRA
[25]
confers
a wide discretion on the Labour Appeal Court to receive further
evidence on appeal, it is the practice of appeal courts
generally to
grant leave to do so sparingly.
[26]
An
appeal court will generally grant such leave only where special
grounds exist; there will be no prejudice to the other side;
and
further evidence is necessary to do justice between the parties.
[27]
Our
courts have formulated a set of requirements that an applicant
seeking to adduce new evidence on appeal must meet. These are:
(a)
There
should be finality in litigation. The litigant who elects to stand by
the evidence he adduces, should not be permitted to
adduce further
evidence unless the circumstances are exceptional.
(b)
The
litigant seeking to adduce further evidence must not have been remiss
in adducing the evidence earlier and must satisfy the
court that he
could not have procured the evidence in question by the exercise of
reasonable diligence.
(c)
The
evidence tendered must be weighty, material and presumably worthy of
belief, and must be such that if adduced, it would be practically
conclusive.
(d)
The
delay in adducing the new evidence must not prejudice the opposite
party. For instance, if the opposite party cannot now produce
evidence which would originally have been available to rebut the
fresh evidence, leave to adduce the fresh evidence will be
refused.
[28]
[82]
A key feature of the case that Lt. Col Myers now belatedly seeks to
advance on appeal for the first time, is the contention
that Colonel
Visser was not the Provincial Commander: K9 and Mounted Services; and
that Lt.Col Du Plessis was not the Unit
Commander of the K9 Unit
as he contended before the Labour Court in the second contempt
application.
On
the contrary, he now contends that Colonel Visser was the Commander
of the K9 Unit and Lt. Col Du Plessis the Operational Commander;
a
subordinate post to the Commander of the K9 Unit.
[83] However, in
his founding affidavit in the second contempt application, Lt. Col
Myers accepted and asserted that Colonel Visser
had not been the Unit
Commander of the K9 Unit. Furthermore, although he has previously
maintained that he should have been reinstated
into the position
occupied by Lt. Col Du Plessis, he now disputes this and
contends that Lt. Col Du Plessis occupied a post
subordinate to the
post which he claims he ought now to be reinstated to.
[84]
This, as rightly contended for by the SAPS, is untenable as Lt. Col
Myers stated, in no uncertain terms, in the first contempt
application, that his post was advertised as a promotional post in
2010 and was filled in March 2010 by Lt. Col Du Plessis as the
Unit
Commander of the K9 Unit situated in Maitland.
This
evidence was accepted by Steenkamp J and formed the basis of his
order. And it is that order which Lt. Col Myers seeks
to enforce in
the present application. It is, therefore, impermissible for him to
seek (belatedly, on appeal) to pursue a case
which conflicts with the
case he has previously pursued (including before Steenkamp J),
namely that he is entitled to reinstatement
to Lt. Col Du Plessis’
position.
Finality in
the litigation
[85] Lt. Col
Myers has failed to demonstrate any exceptional circumstances which
would justify the admission, at this late stage,
of the evidence he
seeks to adduce on appeal. He has been reinstated at salary level 10,
which was his salary level at the time
of his dismissal. It is simply
impermissible for him to now seek, merely through relief sought in
the notice of motion (unsupported
by evidence) to claim a higher
salary. Lt. Col Meyers has been reinstated, and if he contends as he
does, that he is entitled to
a higher salary, he should pursue this
claim in the appropriate forum.
Remissness on
the part of the applicant
[86] The
evidence that Lt. Col Myers seeks to adduce on appeal, consists of
duty lists and payrolls in respect of the Dog Unit.
Although these
documents related to the period when he was dismissed from the SAPS’
employ, he fails to disclose, in his
founding affidavit to this
application, that he had already attached similar duty lists (also
relating to periods during his dismissal),
to his replying affidavit
in the first contempt application.
[87]
It is evident from this, that Lt. Col Myers would have had access to
these documents, alternatively could have obtained access
to them. He
does not dispute that as an experienced police officer in charge of
the Maitland Dog Unit for many years, he would
know that the
documents in question are archived, and could easily have been
requested from the relevant functionaries.
The
evidence
is
not weighty, material and worthy of belief?
[88] Lt. Col
Myers’ application to adduce new evidence rests upon the
allegation that he was misled as to the positions occupied
by Colonel
Visser and Lt. Col Du Plessis. There is simply no substance to this
allegation as the evidence indicates that Lt. Col
Myers was not
misled by anybody. His affidavits indicate that he was fully aware of
the positions occupied by Colonel Visser and
Lt. Col Du Plessis. On
his version, Colonel Visser was the Provincial Commander K9 and
Mounted Services, while Du Plessis
occupied the amalgamated post
i.e. the restructured post at salary level 10.
[89]
Significantly, Lt. Col Myers deposed to an affidavit referring to
evidence which he obtained from Lt. Col Du Plessis indicating
that she was promoted to his post. The SAPS does not dispute that the
duty list proves that Lt. Col Du Plessis occupied the post
which Lt.
Col Myers claimed he ought to be reinstated to. Nor do the SAPS
dispute that she remained in the post until Lt. Col Myers’
reinstatement in May 2015 in accordance with the Steenkamp J
order.
[90] Colonel
Visser did not permanently occupy the post contended for by Lt. Col
Myers. This is clear from his both his affidavits
and from Colonel
Visser’s career trajectory. In 1993, Colonel Visser was
appointed as the Provincial Commander of the Dog
Units for the
Western Cape Province, which later became known as the Provincial
Commander: K9 and Mounted Services, Western Cape.
This post is a
higher ranking post (at salary level 12) than the salary level 10
post which Lt. Col Myers originally claimed reinstatement
to. Colonel
Visser has, therefore, been occupying a higher post at a higher
salary level since 1993.
[91] Colonel
Visser was, from time to time, required to assume the responsibility
for the Dog Unit for specific reasons. However,
this was always of a
temporary nature and, in addition to his primary responsibilities as
Provincial Commander K9 and Mounted Services,
Western Cape. His job
descriptions from 1 April 2011 to the present time show, for this
entire period, that he had never served
as Commander of the K9 Unit,
but has served, since 1993, as Provincial Commander of the K9 and
Mounted Services, Western Cape,
a salary level 12 post. It is clear
from this, that the funding for the salary level 12 post that Colonel
Visser has been occupying
for the past 24 years, is not even vaguely
linked to the post of Commander of the K9 Unit, which Lt. Col Myers
claimed reinstatement
to.
[92] As already
alluded to earlier in this judgment, the letter of 24 April 2015,
stating that Colonel Visser had been placed in
the post of Commander
K9 Unit years back, was revoked in the letter dated 5 May 2015. This
confirmed not only that Colonel Visser
was not to be placed in the
post of Commander of the K9 Unit, but also that he must continue his
duties at Provincial Emergency
Services.
[93] The
payrolls (annexures IM23 to IM36) similarly do not demonstrate that
Colonel Visser was appointed into Lt. Col Myers’
post. As
pointed out on behalf of the SAPS, the payrolls serve two primary
functions,
i.e.
identifying the physical pay point for salary
purposes of the relevant police officers, and as a checklist to
verify the employees
at the unit.
[94] The duty
lists too do not prove that Colonel Visser was appointed to Lt. Col
Myers’ claimed post. The post in question
was occupied by one
Lt. Col Dyanti, followed by Lt. Col Du Plessis. Colonel Visser
assumed responsibility for the K9 Unit as the
overall commander of
all the dog units and for specific reasons. Lt. Col Myers’
contention that Colonel Visser has, from
2009, occupied the post he
now claims to be reinstated to, is manifestly unfounded.
[95] In his
final replying affidavit, Lt. Col Myers accepts that since October
2010 Colonel Visser has not served as Unit Commander
of the Combined
Unit. This is approximately two years before the SCA handed down its
judgment of 29 November 2012, and approximately
between four and
eight years before Steenkamp J, LAC and Whitcher J judgments
were each handed down.
[96] It is
common cause that by the time the reinstatement orders of the SCA,
Labour Court, and LAC were implemented, Colonel Visser
had long
ceased to occupy any role as Commander of the Unit (whether as his
sole function or together with other responsibilities).
It is,
therefore, untenable for Lt. Col Myers to now belatedly seek to
advance a case that he should be reinstated to the position
he
accepts Colonel Visser ceased to occupy years before the
reinstatement order was made and implemented.
Prejudice
[97] The SAPS
contends that Lt. Col Myers’ piecemeal litigation prejudices
them because given the time which has elapsed,
in some cases up to
eight years, it has been extremely difficult and time-consuming for
them to locate the necessary documents
to address all the allegations
contained in Lt. Col Myers’ founding affidavit.
[98] I am
accordingly not satisfied that Lt. Col Myers’ application to
adduce new evidence meets the requirements for adducing
new evidence
on appeal. Accordingly, the application to adduce further evidence on
appeal and cross-appeal falls to be dismissed.
Cross-Appeal
[99]
The cross-appeal is against the period of retrospectivity of the
increase to salary level 12. Whitcher J, in the exercise
of her
discretion under section 193(1)(a) of the Labour Relations Act (
“LRA”)
[29]
deemed
it appropriate that her order of reinstatement should be
retrospective to 1 March 2011. Lt. Col Myers seeks to vary this
in
his cross-appeal with an order retrospective to 4 September 2008
which purportedly marked the commencement of the restructuring
process in the Western Cape.
[100] Lt. Col
Myers’ case as originally formulated in his founding affidavit,
in the second contempt application, was that
the post was upgraded to
salary level 12 with effect from 29 June 2009. In his replying
affidavit, the date of the purported
upgrade changed to 9 March 2011.
The case he seeks to advance in the cross-appeal – is that he
should be appointed at salary
level 12 with effect from 4
September 2008. However, in argument and in his heads of argument,
this date changed to 1 December
2007. Finally, in his supplementary
heads of argument filed with leave of the Court, he reverted to 4
September 2008 alternatively
29 June 2009.
[101] The
contention advanced by Lt. Col Myers in relation to the former date,
is that the documents which he seeks to adduce as
evidence in the
cross-appeal, namely duty lists and payroll sheets, prove that the
upgraded post (salary level 12) was implemented,
funded and occupied
as part of phase 1 of the restructuring process, which commenced on 4
September 2008.
[102] Lt. Col
Myers, however, presented no evidence in the Labour Court (Whitcher
J) which could conceivably have justified an order
retrospective to 4
September 2008, as now sought in the cross-appeal. It is, therefore,
not surprising that Lt. Col Myers’
case on cross-appeal is
based squarely on new evidence he wishes to adduce, which he contends
will show that the salary level 12
post was implemented, funded
and occupied on 4 September 2008.
[103] In
principle, a cross-appeal (like an appeal) lies against the
correctness of the judgment of the court below, based on the
evidence
before it. It is not competent for a cross-appeal to lie against a
judgment based on new evidence adduced on appeal, and
a case that was
never made out in the court of first instance. As is evident from Lt.
Col Meyer’s application to adduce new
evidence on appeal, his
case has mutated from the relief that he originally sought in his
founding affidavit, to what he now seeks
in this application to
adduce new evidence on cross-appeal.
[104] The
success of the cross-appeal is, however, contingent upon the success
of the application to adduce new evidence on appeal.
Given the
outcome of that application, the cross-appeal also falls to be
dismissed.
[105] For these
reasons, the appeal succeeds and the cross-appeal fails.
Costs
[106] On 5 May
2015, the SAPS reinstated Lt. Col Myers to the post he occupied prior
to his dismissal. He took up the post the next
morning. That ought to
have put an end to the litigation between the parties. But, in an
effort to secure a promotion to which
he was not entitled in either
law or fact, Lt. Col Myers launched the second contempt application
in the Labour Court, when it
was clear that the SAPS were not in
contempt.
[107] To
confound matters further, Lt. Col Myers cross-appealed against the
order of the Labour Court (per Whitcher J) in the second
contempt
application. Though impermissible, the cross-appeal was based on a
reformulated case − on new evidence to be adduced
on appeal −
that was never made out in the court of first instance.
[108] For these
reasons, I consider it to be fair and just that Lt. Col Myers be
ordered to pay the costs of the appeal, cross-appeal
and application
to adduce new evidence on appeal.
Order
[109] In the
result, I order that:
1
The
appeal succeeds with costs, including the costs of two counsel.
2
The
order of the Labour Court is set aside and replaced with the
following order:
“
The
application is dismissed with costs, including the costs of two
counsel.”
3
The
cross-appeal is dismissed with costs including the costs of two
counsel.
4
The
application to adduce new evidence on appeal is dismissed with costs.
_____________________
Kathree-Setiloane
AJA
Labour Appeal
Court
Cape
Town
Davis JA and
Landman JA concurring.
APPEARANCES:
FOR THE
APPELLANTS:
Mr A. Freund SC with Mr EA De
Villiers-Jansen
Instructed by
The State Attorney
FOR THE
RESPONDENT:
Mr A Oosthuizen SC with Mr JA Nortje
Instructed
by
Heidi Van Muelen Attorneys
[1]
The appellants are collectively referred to as “SAPS” in
the judgment.
[2]
[2]
Reported
sub nom
Myers
v National Commissioner of the SA Police Service and Others
(2013) 34 ILJ 1729 (SCA).
[3]
Reported
sub nom
Myers
v National Commissioner of the SA Police Service and Another
(2014) 35 ILJ 1340 (LC) at para 14.
[4]
[4]
National
Commissioner of the SA Police Service and Another v Myers
([2015] ZALAC 31.
[5]
Own clarification.
[6]
South African Police Service Employment Regulations, 2008 GN973 in
GG
31412
of 12 September 2008, (“SAP Employment Regulations”)
promulgated under the SA Police Service Act 68 of 1995.
[7]
Section
30(7) to (9) of the SAPS Employment Regulations provide:
(7)
The National Commissioner may increase the
salary of a post to a higher salary level in order to accord with
the job
weight,
if
—
(a)
the
job
weight
as
measured by the job evaluation system indicates that the post was
graded incorrectly; and
(b)
the budget of the Service and the medium-term expenditure framework
provide sufficient
funds.
(8)
If the National Commissioner increases the salary of a post as
provided under subregulation (7), he or she must
transfer the
incumbent
employee
to another post that accords with the
salary level of the
employee
and advertise the vacant post at
the higher salary level: Provided that the National Commissioner may
continue to employ the incumbent
employee
in the
higher-graded post without advertising the post if —
(a)
the
incumbent already performs the duties of the post;
(b)
the
incumbent has received a satisfactory rating in his or her most
recent performance assessment; and
(c)
it
will be in the interest of the Service.
(9)
If the National Commissioner decides to continue to employ the
incumbent
employee
in the higher-graded post without
advertising the post, —
(a)
the
absorption of the incumbent
employee
in
the higher-graded post as provided under sub-regulation (8), must
take effect on the first day of the month following the month
during
which the National Commissioner approved that absorption; and
(b)
the salary of the
employee
must
be adjusted to the minimum notch of the higher salary level with
effect from the date referred to in
subparagraph
(a).
[8]
Footnote
omitted.
[9]
Emphasis
added.
[10]
The
claim as now reformulated in the notice of cross appeal is for
relief retrospective to 4 September 2008 alternatively to 1
July
2009. The alternative claim is not asserted in an amendment to the
notice of cross-appeal but rather in the supplementary
heads of
argument prepared on behalf of Lt. Col Myers.
[11]
Eke
v Parsons
2016 (3) SA 37
(CC) at para 59.
[12]
Emphasis
added.
[13]
Equity
Aviation Services (Pty) Limited v Commission for Conciliation,
Mediation and Arbitration
[2008] ZACC 16
;
2009 (1) SA 390
CC at para 36;
Nel
v Oudtshoorn Municipality and Another (
2013)
34 ILJ 1737 (SCA) at para 8;
Themba
v Mintroad Sawmills (Pty) Limited
(2015) 36 ILJ 1355 (LC) at para 22 (
Themba
).
[15]
Themba
at
para 31.
[16]
Themba
at
para 22
,
Republic Press v CEPPWAWU
(2016)
28 ILJ 2503 (SCA) at para 19
and
Kroukam
v SA Airlink
2005 (26) ILJ 2153 (LAC) at para 59.
[17]
Themba
at
para 31.
[18]
Themba
at para 33.
[19]
Themba
at para 34.
[20]
Themba
at para 36.
[21]
Swissborough
Diamond Mines v Government of the RSA
1999 (2) SA 279
(T) at 324D-F.
[22]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-G.
[23]
LAC Judgment at para 10.
[24]
In
South African Police Service v Public Servant’s Association
[2007] 5 BLR 383
(CC) at paras 32 and 34.
[25]
Section
174 of the LRA which deals with the powers of the Labour Appeal
Court on hearing appeals provides:
The Labour Appeal Court has the power
–
(a)
on the
hearing of an appeal to receive further evidence, either orally or
by deposition before a person appointed by the Labour
Appeal Court,
or to remit the case to the Labour Court for further hearing, with
such instructions as regards the taking of further
evidence or
otherwise as the Labour Appeal Court considers necessary; and
(b)
to
confirm, amend or set aside the judgment or order that is the
subject of the appeal and to give any judgment or make any order
that the circumstances may require.
[26]
Prince
v President, Cape Law Society and Others
[2000] ZACC 28
;
2001 (2) SA 388
CC at para 21.
[27]
De
Aguiar v Real People Housing (Pty) Ltd
2011
(1) SA 16
SCA at paras 9-11;
Asla
Construction (Pty) Ltd v Buffalo City Metropolitan Municipality
[2017] ZASCA 23
(24 March 2017 at paras 22-23.
[28]
De
Aguiar v Real People Housing
(
supra
)
at para 12; see also
Colman
v Dunbar
1933 AD 141
at 160-162.
[29]
No. 66 of 1995.