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[2018] ZALAC 58
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Minister of Police v National Commissioner of Police and Others (JA42/2017) [2018] ZALAC 58 (7 June 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
reportable
Case
no: JA42/2017
In
the matter between:
MINISTER
OF POLICE
First Appellant
NATIONAL
COMMISSIONER OF POLICE
Second Appellant
and
MM
KGOPA
First Respondent
LT
COLONEL DE LANGE
Second Respondent
Heard:
24 May 2018
Delivered:
07 June 2018
Summary:
Locus standi
for
the state to review its own decisions under section 158(1)(h) –
Employee dismissed for misconduct – chairperson
of the
disciplinary hearing discharging the matter as the request of the
employee.
Held:
Locus standi
- The law is settled. Section 158(1)(h) of the LRA empowers the
Labour Court to review decisions of chairpersons at disciplinary
hearings, at the instance of the employer, in circumstances where the
State is the employer. Concomitantly, the State as employer
has the
standing to institute such review proceedings.
Held:
Discharge - the decision of the chairperson was unreasonable and
illegal. The whole point of a disciplinary hearing is to
provide an
employee an opportunity to respond to the allegations against him or
her and to weigh the probabilities to establish
if misconduct has
been committed and what sanction might be appropriate. The
Chairperson erred and acted unreasonably in treating
the employee’s
version put in cross-examination as sufficient evidence and by
accepting it as the more probable version.
Appeal upheld and matter
remitted for a hearing
de
novo
.
Coram:
Waglay JP, Jappie and Murphy AJJA
JUDGMENT
MURPHY
AJA
[1]
This is an appeal against a judgment of the Labour Court (Everett AJ)
dismissing the
appellants’ application to review and set aside
a decision of the second respondent (“the Chairperson”)
in a
disciplinary hearing discharging the first respondent (“Kgopa”)
from charges of misconduct and in which it held that
section
158(1)(g) and/or (h) of the Labour Relations Act
[1]
(“LRA”) does not permit the appellants to review the
decisions of their own functionaries. The respondents do not oppose
the appeal.
[2]
The issue on appeal is whether the appellants (and the State more
broadly) have
locus standi
to review their own decisions under
section 158(1)(h) of the LRA.
[3]
On 7 April 2012, Kgopa was charged with four counts of misconduct,
including corruption.
The charges stemmed from a series of alleged
interactions with a member of the public (“Nonyane”) who
sought to lay
a charge of fraud during January 2012. It is alleged
that Kgopa had firstly advised Nonyane to open a case of robbery
instead of
fraud because his involvement in the alleged fraud
constituted a crime and secondly demanded R1500 to open the case.
[4]
A disciplinary hearing was held on 16 and 17 May 2012 at which Kgopa
pleaded not guilty
to four counts of misconduct. The employer led
three witnesses at the disciplinary hearing. Nonyane was the only
witness who could,
and did, speak to the events of January 2012. He
testified that Kgopa had told him to change his charge and had
demanded R1500
to open a case of robbery. Kgopa’s version put
to the employer’s witnesses was that the money deposited into
his account
from Nonyane was in repayment for a loan. Nonyane denied
this version. After the employer’s evidence, Kgopa’s
representative
applied for a “discharge”.
[5]
The Chairperson granted the discharge on the basis that the evidence
presented was
essentially the evidence of a single witness who
together with the other witnesses had failed to give a good
impression. The Chairperson
placed significant emphasis on the
balance of probabilities and stated:
‘“
The
balance of probabilities must be tested in all courts from here
upwards up to the constitutional court. And the requirements
from the
court to test these cases, the court would want to see if there is
fairness that table work on facts or that they work
on fabrication,
that they work on assumptions, perceptions and I must really tell you
that there is not enough to come and say
there is any balance to the
employer’s side more than to the employee’s side. And
therefore to call the employee so
that the employer can get more
balance into his side of the scope would probably not happen.”
Thus,
she engaged in a balancing exercise in relation to the evidence
before there was any evidence from Kgopa to weigh in the balance.
[6]
On 19 December 2012, the appellants instituted review proceedings in
terms of section
158(1)(h) of the LRA in the Labour Court against the
Chairperson’s ruling and sought orders reviewing and setting
aside the
decision absolving Kgopa from giving evidence in his own
defence on the charges preferred against him and referring the matter
back either to proceed
de novo
before another Chairperson or
for the disciplinary hearing to proceed on the basis that the
application for discharge at the close
of the employer case was
refused.
[7]
The appellants maintained that the Chairperson applied the incorrect
test in determining
whether “to grant absolution from the
instance”. Instead of determining whether there was sufficient
evidence on which
a reasonable man might find for the employer, the
chairperson balanced the probabilities of the employer’s
version against
that of Kgopa’s version, even though Kgopa had
not testified. They also contended that the Chairperson’s
ruling was
vitiated by an error of law because a significant portion
of her ruling was based on adverse credibility findings. As a
consequence
of these irregularities, and because the Chairperson’s
decision constituted administrative action, the appellants’
contended that the ruling stood to be set aside on the bases that it
was grounded on an error law, unlawful; unreasonable; procedurally
unfair; and constituted a gross irregularity.
[8]
The review application sought to review and set aside the
Chairperson’s decision
“to grant absolution from the
instance” in Kgopa’s disciplinary hearing. However, in
fact, the Chairperson never
granted absolution from the instance. She
dismissed the charges against Kgopa, after Kgopa’s
representative applied for a
discharge. Chairpersons presiding in
SAPS misconduct disciplinary hearings are empowered to grant a
discharge in terms of the Regulations
of the South African Police.
There was, therefore, no ruling founded upon an absolution from the
instance to be reviewed.
[9]
Without realising that the Chairperson had actually discharged Kgopa,
the Labour Court
held that absolution from the instance is not
appropriate in the context of disciplinary enquiries. The error is
understandable
in that the appellants had in their notice of motion
sought review of the assumed decision to grant absolution. Be that as
it may,
the review application was dismissed on the basis that the
appellants lacked standing to review the decision of the Chairperson.
The Labour Court held:
‘
Section
158(1)(g) provides for the review of “any function provided in
this Act”. A disciplinary enquiry – other
than an enquiry
by arbitrator provided for in terms of section 188A – is
strictly not a function provided for in this Act.
And if it were it
would result in the outrageous situation that the conduct of
employers or chairpersons might be taken directly
on review in the
Labour Court, bypassing the conciliation and arbitration provisions
of the LRA.
Section 158(1)(h)
provides for the review of “any decision taken or any act
performed by the State in its capacity as employer”.
This
provision exists to ensure fair treatment by the State towards it
employees and to avoid the abuse of State power. It does
not exist to
provide the State with an opportunity to review the functions of its
own functionaries who, when they perform their
functions, do so on
behalf of the State. The State’s attempt to review the
chairperson it appointed for bias in favour of
the first respondent,
is similarly absurd.’
[10]
The judgment, if correct, would as a general rule preclude the State
as employer from reviewing
the decisions of its own functionaries in
the context of erroneous rulings by disciplinary chairpersons
presiding over disciplinary
hearings for misconduct. The judgment,
however, stands in contradiction with the decisions of this Court
which hold that a state
functionary, such as the appellant, can
review the decisions of its own functionaries.
[11]
Section 158(1)(h) of the LRA provides that the Labour Court may
review any decision taken or
any act performed by the State in its
capacity as employer, on such grounds as are permissible in law. In
Hendricks
v Overstrand Municipality
[2]
,
this Court was invited to determine whether the Labour Court has the
power to review the decision of a presiding officer of a
disciplinary
hearing at the instance of the employer, where the employer is the
State. Relying on the decision of the Supreme Court
of Appeal in
Ntshangase
v MEC for Finance KZN
[3]
it held:
‘
The
Labour Court has the power under section 158(1)(h) to review the
decision taken by a presiding officer of a disciplinary hearing
on
(i) the grounds listed in PAJA, provided the decision constitutes
administrative action; (ii) in terms of the common law in
relation to
domestic or contractual disciplinary proceedings; or (iii) in
accordance with the constitutional requirements of the
principle of
legality, such being grounds permissible in law.’
[12]
Thus, the law is settled. Section 158(1)(h) of the LRA empowers the
Labour Court to review decisions
of chairpersons at disciplinary
hearings, at the instance of the employer, in circumstances where the
State is the employer. Concomitantly,
the State as employer has the
standing to institute such review proceedings. Everett AJ’s
finding that section 158(1)(h)
“does not exist to provide the
State with an opportunity to review the functions of its own
functionaries who, when they
perform their functions, do so on behalf
of the State”, is therefore wrong in law and stands to be set
aside.
[13]
However, the learned acting judge was correct in finding (in effect)
that the decision of the
chairperson was unreasonable and illegal. As
she stated, the whole point of a disciplinary hearing is to provide
an employee with
an opportunity to respond to the allegations against
him or her and to weigh the probabilities to establish if misconduct
has been
committed and what sanction might be appropriate. It was
unreasonable for the Chairperson merely to have weighed the
employer’s
version (which established
prima facie
misconduct) against the employee’s version put to the
witnesses in cross-examination. The employee was required to testify
to rebut the
prima facie
case against him, or alternatively to
close his case, in which event the Chairperson would have been
required to assess in accordance
with the applicable rules of
evidence whether the unanswered evidence sufficiently established the
misconduct. The Chairperson
erred and acted unreasonably in treating
the employee’s version put in cross-examination as sufficient
evidence and by accepting
it as the more probable version.
[14]
For those reasons, the matter must be remitted to a disciplinary
enquiry
de novo
. However, the chairperson of the
de novo
hearing should be permitted to admit into evidence the record of the
proceedings before the second respondent without recalling
the
relevant witnesses unless any of the parties on application seeks
leave to do so.
[15]
The following orders are made:
15.1
The appeal is upheld and the judgment of the Labour Court is set
aside.
15.2
The decision of the second respondent dated 17 May 2012 is set aside.
15.3
The disciplinary proceedings against the first respondent are
remitted to the second applicant to proceed
de
novo
before another Chairperson who
shall be permitted to rely on the record of evidence before the
second respondent together with any
additional evidence adduced by
the parties before him or her.
_____________
JR
Murphy AJA
I
agree
_____________
B
Waglay JP
I agree
______________
A
Jappie AJA
APPEARANCES:
FOR THE
APPELLANT:
Adv N Muvangua and Adv V Bruinders
Instructed
by: The state attorney
FOR
THE FIRST RESPONDENT:
No appearance
[1]
Act 66 of 1995.
[2]
[2014] 12 BLLR 1170
(LAC) at para 29
[3]
Ntshangase
v MEC for Finance Kwazulu-Natal and Another
2010
(3) SA 201
(SCA).