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[2010] ZALCJHB 48
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Moswane v South African Police Services and Others; In Re: South African Police Services and Another v Moswane and Others (JR813/08) [2010] ZALCJHB 48 (20 October 2010)
Not reportable/ Not
of interest to other judges
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: JR813/08
In
the matter between:
MJ
MOSWANE APPLICANT
and
SOUTH
AFRICAN POLICE
SERVICES 1
ST
RESPONDENT
TS
MANAMELA 2
ND
RESPONDENT
FJ
VAN DER
MERWE 3
RD
RESPONDENT
SAFETY
AND SECURITY BARGAINING
COUNCIL 4
TH
RESPONDENT
In
re
SOUTH
AFRICAN POLICE
SERVICES 1
ST
APPLICANT
TS
MANAMELA 2
ND
APPLICANT
and
MJ
MOSWANE 1
ST
RESPONDENT
FJ
VAN DER
MERWE 2
ND
RESPONDENT
SAFETY
AND SECURITY BARGAINING
COUNCIL 3
RD
RESPONDENT
JUDGMENT
AC
BASSON, J
:
Introduction
[1]
This is an application for an order
dismissing the review application filed by the applicant in the main
application (Mr. Moswane
– hereinafter referred to as
“Moswane”). In the main application (which I will also
consider hereinbelow) Moswane
is seeking to review and set aside the
arbitration award rendered by the 3rd respondent in the main
application (hereinafter referred
to as “the arbitrator”).
[2]
When Moswane filed his review applicant he
only cited the Commission for Conciliation, Mediation and Arbitration
and the 1
st
respondent in the main application (the South Arfrican Police
Services – hereinafter referred to as “the SAPS”)
as respondents. No other respondents were cited. When the applicant
filed his supplementary affidavit he cited in addition the
arbitrator
and the 4
th
respondent in the main application (the Safety and Security Sectoral
Bargaining Council (hereinafter referred to as “the
SSSBC”.
The supplementary affidavit is, however, not properly commissioned.
[3]
The State attorney had a meeting with
Moswane applicant during which these shortcomings with the affidavits
were discussed with
him. Moswane was afforded 10 days within which to
rectify the defects. He failed to do so.
[4]
On 12 December 2008 the SAPS filed a notice
in terms of Rule 11 requesting Moswane to remedy the founding as well
as the supplementary
affidavit. Moswane ignored the Rule 11 Notice
and merely filed further Heads of Argument on 2 February 2009.
[5]
The SAPS argued that Moswane, who is
dominus litis
in the review proceedings has caused a considerable delay in
prosecuting the review application and consequently argued that the
review must be dismissed.
[6]
It was further argued that it is clear from
the papers that Moswane did not comply with Rule 7A of the Rules of
the Labour Court
in taking the matter on review.
[7]
In terms of Rule 7A, an applicant in review
proceedings must place such facts before the Court that will enable
this Court to decide
the review. Rule 7A(2)(c) reads as follows:
“
The Notice of
Motion must –
(c) be supported by an
affidavit setting out the factual and legal grounds upon which the
applicant relies to have the decision
or proceedings corrected or set
aside.”
[8]
In essence what is required is that the
parties must set out the facts chronologically and should set out the
facts clearly. The
correct (interested) parties should also be cited
as respondents. See in this regard the decision of the Court in
Die
Dros (Pty) Ltd & Another v Telefon Beverages CC & Others
2003 (4) SA 207 (C) at
217 paragraph 28:
“
It is trite law
that the affidavits in motion proceedings serve to define not only
the issues between the parties, but also to place
the essential
evidence before the Court. (See Swissborough, Diamond Mines (Pty) Ltd
& Others v Government of the Republic of
South Africa &
Others 1999 (2) SA 279 (W) at 323G) for the benefit of
not only the court but also the parties.
The affidavits in motion
proceedings must contain factual averments that are sufficient to
support the cause of action on which
the relief that is being sought
is based. Facts may be either primary or secondary. Primary facts are
those capable of being used
for the drawing of inferences as to the
existence or non-existence of other facts. Such further facts, in
relation to primary facts,
are called secondary facts. (See Willcox &
Others v Arbitrator for Inland Revenue 1960 (4) SA 599
(A) at 602A;
Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75
(W) at 781.) Secondary facts, in the absence of primary facts
on
which they are based, are nothing more than deponent’s own
conclusions (see Radebe & Others v Eastern Transvaal Development
Board 1988 (2) SA 785 (A) at 793C–E) and
accordingly do not constitute evidential material capable of
supporting
a cause of action.”
[9]
Having said this, one should, however,
never lose sight of the fact that Courts (especially the Labour
Court) often deal with lay
litigants who are not converse with court
proceedings. The Labour Court in particular should be accessible to
those that do not
have access to legal representation. Although the
Rules of this Court should be adhered to, the Labour Court should not
be unduly
formalistic when evaluating a review application brought by
a lay person even if it means that the Court will sometimes have to
construe papers drafted by an individual more generously and in a
manner that is more favourable to the lay litigant. However,
having
said this, the Court must also be mindful of the fact that the
founding papers should contain sufficient facts that would
enable the
respondent to formulate a response. See
Xinwa
and Others v Volkswagen of South Africa (Pty) Ltd
[2003] ZACC 7
;
2003 (4) SA 390
(CC):
“
[13]
Pleadings prepared by laypersons must be construed generously and in
the light most favourable to the litigant. Lay litigants
should not
be held to the same standard of accuracy, skill and precision in the
presentation of their case required of lawyers.
In construing such
pleadings, regard must be had to the purpose of the pleading as
gathered not only from the content of the pleadings
but also from the
context in which the pleading is prepared. Form must give way to
substance. While the applicants' notice of motion
does not seek leave
to appeal, what the applicants are seeking is quite clear. They are
seeking to appeal against the finding by
the LAC that their dismissal
was procedurally fair and the consequential relief………
“
The
application to dismiss
[10]
The arbitrator rendered the award on 16
March 2008. The review was launched on 27 March 2008. As already
pointed out, from the beginning
there were problems with the papers
in the review application: The founding affidavit did not cite all
the interested parties and
the subsequent supplementary affidavit was
no properly commissioned. Despite having been afforded an opportunity
to rectify the
defects and despite the fact that a notice was served
in terms of Rule 11 to rectify the shortcomings, Moswane simply
ignored the
problems.
[11]
Moswane opposed the application to dismiss.
His main contention is that the State Attorney tries to delay the
matter and to prejudice
him. I have perused the papers. There is no
basis for this contention. The applicant, who is
dominus
litis
has been granted an opportunity
to rectify the shortcomings but decided to ignore that. I must point
out that Moswane state in the
answering affidavit that his papers are
in order despite the fact that it was pointed out to him that there
are shortcomings. In
the alternative, Moswane states that he be
afforded an opportunity to amend his papers. I can find no reason why
Moswane should
be afforded a further opportunity to supplement his
papers. The fact of the matter is that he was afforded such an
opportunity
twice. He decided to ignore the opportunity. It will, in
my view, therefore serve no purpose to grant Moswane a further third
opportunity
to amend and supplement his papers. In the event the
review is dismissed.
The
review
[12]
In the interest of finality I will now
proceed to the main application and consider whether or not there is,
in any event, merit
in the review.
[13]
The arbitrator was called upon to decide
whether or not the SAPS committed an unfair labour practice in
promoting the second respondent
(Mr Malemela – the second
respondent in the main application) and not Moswane. The arbitrator,
after considering the facts
that were place before him held that an
arbitrator should interfere with circumspection with a decision to
promote and that it
will only be inclined to interfere if there was a
procedural irregularity; where the employer violated own policy and
procedure
or where the employer acted in bad faith or arbitrarily or
in circumstances where the panel did not apply its mind. The
arbitrator
expressly recognised that it is not the task of the
arbitrator merely to second guess the decision of and employer. The
arbitrator
in a fairly detailed award evaluated the evidence and
concluded that the SAPS did not commit an unfair labour practice.
[14]
The gist of Moswane’s complaint
before the arbitrator was that he had applied to be appointed as a
Captain for the Johannesburg
Central CSC post and that he was not
short listed. He also cited the fact that the interviewing panel did
not apply their minds
when deciding not to appoint him and that they
were bias in appointing Malemela.
[15]
Moswane, in the founding affidavit in the
review application, merely lists certain problems that he has with
the award. They range
from the arbitrator was bias (“He took
side”) to the fact that the arbitrator did not consider certain
facts. No reference
whatsoever is made to the record or to findings
made by the arbitrator. I have perused the award of the arbitrator in
light of
the record despite the fact that Moswane’s papers are
of little assistance. I can find no reason why I should interfere
with
the award. The arbitrator clearly was mindful of the legal
principles against which a failure to promote should be measured. The
arbitrator further took into account the evidence and arrived at a
well-reasoned conclusion as to why the SAPS did not commit an
unfair
labour practice. It was, inter alia, considered that the interviewing
panel took into account the period of service in rank,
the length of
total service, experience in the CSC and the place where the
respective job applications were stationed. The interviewing
panel
took into account all of these factors and arrived at the conclusion
that Malemane had longer overall service and longer
service in rank
and longer experience in the Johannesburg CSC. The arbitrator found
that the panel did not act unfairly in taking
these factors into
account. No evidence was placed before the arbitrator of favouritism
or of bad faith towards Moswane. I am therefore
of the view that the
conclusion arrived at by the arbitrator was reasonable. In the event
the review, on the merits, is also dismissed.
In the interest
of fairness I have decided not to make a cost order against Moswane.
In
the event the following order is made:
1.
The application to review is dismissed.
2.
No order as to costs.
_______________________
AC
BASSON, J
Date
of hearing: 16 February 2010
Date
of order: 16 February 2010
Date
of judgment: 20 October 2010
For
the applicant: Adv Mosam.
Instructed by
The State Attorney.
For
the respondent:
In
person.