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[2009] ZALCCT 4
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Ivan v National Commissioner, SAPS and Others (C177/2008) [2009] ZALCCT 4 (12 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
NOT
REPORTABLE
CASE
NUMBER: C177/2008
In
the matter between:
MYERS,
IVAN
Applicant
and
NATIONAL
COMMISSIONER,
SAPS First
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Second
Respondent
DE
KOCK, C
Third
Respondent
JUDGEMENT
NGALWANA
AJ
Introduction
[1]
This is an application for the review, correction and setting aside
of an arbitration award made by the third respondent on
3 March 2008
under case number PSSS444-07/08 and under the auspices of the second
respondent. Correction of the award entails
the retrospective
reinstatement of the applicant to the position of Unit Commander:
Maitland Dog Unit with full benefits he would
have received had he
not been dismissed on 12 July 2007.
[2]
The third respondent found that the applicant’
s
dismissal had been procedurally and
substantively fair. The applicant now seeks the substitution of
that finding with an order
reinstating him to the position he held at
the time of dismissal with retrospective effect. To that end,
he invokes all four
review grounds for which section 145(2) of the
Labour Relations Act, 66 of 1995 (“the LRA”) provides.
Common
Cause Facts
[3]
The following facts are not in dispute.
[4]
The applicant had 28 years unbroken service in the South African
Police Service (“the SAPS”).
[5]
He was 6 years away from becoming eligible for early retirement when
he was dismissed.
[6]
He was dismissed on 12 July 2007 for prejudicing the SAPS by
submitting an article to a Cape Town daily newspaper and a weekend
newspaper concerning the condition of police dogs (malnutrition) at
the Maitland Dog Unit without the permission of his commander
or
media liaison official and in breach of the SAPS standing orders and
regulations.
[7]
At the time of publication of the articles the applicant held the
rank of Superintendent in the SAPS and was employed as Unit
Commander
of the Maitland Dog Unit.
[8]
The issue of the police dogs’ malnutrition was raised by the
South African Police Union (“
SAPU”)
with the SAPS top management in February 2007 after some members of
SAPU who worked at the Maitland Dog Unit approached
the union about
the problem.
[9]
SAPU then invited the applicant to a meeting at its offices since he
was Commander of that Unit. The purpose of the meeting
seems to
have been to ascertain from the applicant the reasons for this
development. As the applicant was on leave at that
time, he
felt he was in no position to comment but rather to find out from
management.
[10]
As a journalist from
Die Burger
newspaper was present at that meeting, the applicant contacted the
SAPS provincial commissioner to alert him that the media “was
on to the story about the dogs” and that he should take steps
to prevent the story as that would prejudice the SAPS.
Adverse
media reports about the dogs appeared in any event the following day,
one of them saying the dogs were eating their own
excrement.
[11]
On 16 February 2007 members of the public expressed their outrage at
the condition of the dogs.
[12]
As Commander of the Unit the applicant interrupted his leave on 21
February 2007 to “take control of the situation”
as he
felt he was “duty bound to do”. There he found the
chief veterinarian of the SAPS, the SAPS media liaison
officer and
two senior SARS officials. The chief veterinarian told him they
were about to hold a meeting on the issue of
the dogs. When he
asked to be part of the meeting his request was denied.
[13]
Two days later the applicant sent an electronic mail to
Die
Burger
newspaper in which he expresses
his view candidly about the condition of the dogs and what causes
it. An article based on
that electronic mail appeared on 26
February 2007 in
Die Burger
.
There is no doubt that it does not portray the SAPS in a good light.
[14]
Four months later, on 18 June 2007, the applicant was charged with
“prejudic[ing] the administration, discipline or efficiency
of
a Department, Office or Institution of the State” by “making
a Media communication”. This was the main
charge.
In the alternative, he was charged with “fail[ing] to carry out
a lawful order or routine instruction without
just or reasonable
cause, namely S.O. (General) 156 by making a Media communication”.
The main charge was founded on
regulation 20(f) of the SAPS
Discipline Regulations, while the alternative charge derives from
regulation 20(i) of those regulations.
[15]
At the conclusion of the disciplinary hearing the applicant was found
guilty and the sanction imposed was that of dismissal
and a R500
fine. I deal with the charge of which the applicant was found
guilty below.
[16]
On appeal, the sanction of a fine was set aside but the dismissal was
confirmed.
[17]
He then referred the matter to con/arb under the auspices of the
second respondent. Conciliation failed and the third
respondent
presided over the arbitration at the conclusion of which he found the
applicant’s dismissal to have been substantively
fair.
[18]
It had been agreed between the parties that no oral evidence would be
led at the arbitration but that the record of the disciplinary
proceedings would serve as the only material to which the third
respondent should have regard. In addition, closing arguments
would be made by the parties’ respective representatives.
That is what happened and so procedural unfairness is not
at issue.
The
Review Standard
[19]
Section 145 of the Labour Relations Act, 66 of 1995 (“the LRA”)
on which the applicant relies for this review application
requires
that he proves one of four grounds of review. These are
[19.1]
misconduct on the arbitrator’s part in relation to his duties
as an arbitrator;
[19.2]
gross irregularity in the conduct of arbitration proceedings;
[19.3]
ultra vires
conduct by the arbitrator in the exercise of his powers and
[19.4]
an improper obtaining of the award.
[20]
He has invoked all four.
[21]
On a
conspectus
of relevant case law, however, it seems to me the permissible grounds
of review are wider than those set out in section 145(2)
of the LRA
and can perhaps be reduced to this: for the applicant to succeed the
decision must be shown to be irrational (in the
sense that it does
not accord with the reasoning on which it is premised or the
reasoning is so flawed as to elicit a sense of
incredulity) and
unjustifiable in relation to the reasons given for it (
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp NO
(2002)
23
ILJ
863
(LAC) at paragraph [19];
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others
(2001)
22
ILJ
1603
(LAC) at paragraph [26];
Carephone (Pty)
Ltd v Marcus NO and Others
(1998) 19
ILJ
1425
(LAC) at paragraph [37];
Pharmaceutical
Manufacturers’ Association of SA and Others: In re Ex Parte
Application of the President of the RSA and Others
[2000] ZACC 1
;
2000
(3) BCLR 241
(CC)).
[22]
It is not the reviewing court’s task to consider whether or not
the decision is correct in law as that would be an appeal
(
Minister
of Justice and Another v Bosch NO and Others
(2006)
27
ILJ
166
(LC) at paragraph [29]).
[23]
More recently, the Constitutional Court has pronounced that “the
better approach” is to enquire whether the decision
reached by
the commissioner is one that a reasonable decision-maker (presumably
faced with the same evidence) could not reach (
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC), at paragraph [110]).
[24]
In my respectful view the “constitutional standard” now
propounded by the Constitutional Court in
Sidumo
bears a striking resemblance to the test usually applied in
applications for leave to appeal, the only difference being the
substitution
of “a reasonable decision-maker” for the
higher court or another court. The danger is thus the blurring
of the
line between an appeal on the merits, on the one hand, and a
review based on the rationality and justifiability of the decision
when regard is had to the evidence advanced on the other. To my
mind, an irrational and/or unjustifiable decision must
pari
passu
be unreasonable. It is
hoped that the reasonableness standard now propounded by the
Constitutional Court will in future be
tightened to ensure there is
no confusion as regards the extent to which reasonableness of the
commissioner’s decision may
be tested.
[25]
It seems to me the proper approach is to ask not whether the
commissioner’s decision is one that a reasonable court (or
reasonable decision-maker) could not reach but rather whether, in
light of the evidence advanced and having due regard to
considerations
of equity (after all, the Labour Court is primarily an
equity court), the commissioner’s decision is one that can
properly
be said to be reasonable. Thus phrased, the standard
avoids a review enquiry that leads inexorably to entanglements in
appeal
territory.
[26]
This in my respectful view is not so much an exercise in substituting
this court’s own standard for that of the Constitutional
Court,
as it is an attempt at giving the constitutional standard a
construction that eschews the blurring of the line between reviews
and appeals.
Is
the third respondent’s award reviewable?
[27]
The difficult balance in this case is that between the sacrosanctity
of the administrative and disciplinary framework of SAPS
and the
integrity of SAPS procedures on the one hand, and a senior member’s
determination to do what he thinks is right on
the other. There
can be no doubt that if every SAPS member were permitted to flout
procedure in his or her determination
to do what he or she believes
to be a just cause, the police force would be in disarray. As a
senior member of the police
force who has been in service for 28
years, the applicant should have known better.
[28]
Nevertheless, I believe the third respondent’s award falls to
be set aside for another reason. In his award he
moves
emphatically from the premise that the applicant had been found
guilty on the main charge, even though he appreciates that
the
chairperson of the disciplinary hearing confused the two charges by
tampering the one with elements of the other. This
the third
respondent dismisses as a mere technicality that should not affect
the fact that the applicant had been charged with
both the main and
the alternative charge. Relying on an earlier decision of this
court, the third respondent then takes the
view (correctly) that
arbitration proceedings are a
de novo
consideration of the issue in question,
and that he is not bound by the fact that the charge sheet had been
incorrectly drawn up.
He then proceeds to consider both charges
in determining the fairness or otherwise of the applicant’
s
dismissal.
[29]
There are in my view a number of fundamental misdirections in the
third respondent’s approach. First, the third
respondent
was not confronted with a charge sheet that had been incorrectly
drawn up. He was confronted with a higgledy-piggledy
finding of
guilt which confused the one charge with another. The result is
that it is not clear on which of the two charges
the applicant was
found guilty. A perusal of the transcribed record of the
disciplinary hearing (page 245), a written notification
of the
sanction in terms of regulation 16(1) dated 16 July 2007, and the
appeal decision dated 14 December 2007 demonstrates the
confusion as
regards the charge on which the applicant was found guilty.
[30]
The precise charge on which the applicant was found guilty at the
disciplinary hearing is important for purposes of considering
an
appropriate sanction. Different considerations may apply in
determining an appropriate sanction for the main charge in
contradistinction to the alternative charge. For example,
article 7 of Schedule 8 to the LRA (Code of Good Practice) applies
in
relation to the alternative charge for purposes of finding an
appropriate sanction, the “rule or standard regulating conduct
in the workplace” being Standard Order (general) 156. Not
so in relation to the main charge which seems suited more
to the
application of articles 3(4), 3(5) and 3(6) of the Code of Good
Practice in the absence of a rule or standard regulating
conduct in
the workplace. Thus, for purposes of finding an appropriate
sanction, the two charges are not “very much
intertwined”
as the third respondent suggests.
[31]
In determining the appropriate sanction in relation to the main
charge, it was imperative for the third respondent to ascertain
whether the applicant had previously been disciplined on the same
charge (see article 3(4) of the Code of Good Practice), and consider
the seriousness of his conduct. This in my view was something
that (in the language of the Constitutional Court in
Sidumo
)
a reasonable decision-maker could have done. The third
respondent did neither. Instead he found the seriousness of
the
misconduct in “the applicant’s position within the SAPS”
and in his “long service record within the
SAPS”, not in
the
nature
of the misconduct and the adverse effect it may have on SAPS. This
is a serious misdirection in my view. Long service,
it seems to
me, tends to be a mitigating factor and not a factor justifying the
ultimate sanction.
[32]
At the disciplinary hearing, Commissioner Strydom gave evidence of
three other occasions when the applicant was found guilty
of
misconduct. The first was in 1984 when the applicant skipped a
red traffic light. The second was in 2002 when the
applicant
was again charged with misconduct involving “racial undertone”
for which he received a suspended sanction
of dismissal. The
third was in January 2007 when the applicant was charged with “gross
insubordination” for which
he again received a suspended
sentence.
Ex facie
the award, it does not seem the third respondent considered any of
these previous infractions and sanctions in arriving at his
decision
that the applicant’s dismissal was fair. It is thus
difficult to find justification for the appropriateness
of the
sanction of dismissal.
[33]
In finding that the applicant’s conduct evinced “a clear
disregard of authority” the third respondent seems
to have
taken to heart the characterisation of the applicant’s conduct
by the chairperson of the disciplinary hearing as
demonstrative of
“insolence . . . impudence, cheekiness, disrespect and
rudeness”. But the applicant was not
charged under
regulation 20(s) which deals with insolence and disrespect.
This was yet another serious misdirection.
[34]
Although the third respondent is with respect correct when he says
arbitration proceedings are a
de novo
consideration of the issue at hand, the one over which he presided
was somewhat limited in its breadth of evidential consideration
by
the fact that the parties had agreed to confine themselves to the
record of the disciplinary hearing. This was in my view
not an
appropriate case for that because the evidence on the applicant’s
previous infractions (for one thing) is rather imprecise
and so it
would have been impossible to ascertain whether he had previously
been found guilty of the charges now preferred against
him so that an
appropriate sanction could then be determined.
[35]
Having been so straitjacketed, the third respondent was not at
liberty to speculate on the precise charge on which the applicant
was
found guilty when the record seems to suggest, at best, that he was
found guilty on the charge other than that on which the
third
respondent says he was. In my view, the record is rather
higgledy-piggledy in this regard.
[36]
For that reason, it would not be appropriate in the circumstances of
this case either to substitute my own finding as the applicant
will
have me do, or remit the matter to the second respondent for
reconsideration in the same manner as the third respondent did.
Clear evidence needs to be led in this case and a clear finding made
on that evidence. This is a relatively young matter.
[37]
In the circumstances:
[a]
The third respondent’s arbitration award dated 3 March 2008
under case number PSSS444-07/08
is hereby reviewed and set aside;
[b]
The matter is remitted to the second respondent for a
de
novo
hearing
on
an urgent basis
before a commissioner
other than the third respondent;
[c]
The first respondent is to shoulder the costs incurred by the
applicant in prosecuting this
application.
____________________
Ngalwana
AJ
Appearances
For
the applicant:
Mr JA Nortje
Instructed
by:
Wynand Du Plessis Attorneys
For
the 1
st
respondent:
Mr E De Villiers-Jansen
Instructed
by:
State Attorney, Cape Town
Date
of hearing:
10
October 2008
Date
of judgment:
12 January 2009