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[2010] ZALCCT 30
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National Commissioner of Police and Another v Harri NO and Another (C641/2009) [2010] ZALCCT 30 (19 November 2010)
Reportable
Of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
C
ase
no: C 641 / 2009
In
the matter between:
THE
NATIONAL COMMISSIONER OF
POLICE
First
applicant
THE
PROVINCIAL COMMISSIONER OF
POLICE
Second
applicant
and
SENIOR
SUPERINTENDENT HARRI
N.O.
First
respondent
GORDON
ROBERT
LAMASTRA
Second
respondent
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This
is an unusual application for review. The applicants seek to review
the decision of the first respondent in his capacity as
the
chairperson of a disciplinary enquiry in terms of section 158 (1)(h)
of the Labour Relations Act
[1]
;
alternatively, in terms of section 6 of the Promotion of
Administrative Justice Act
[2]
.
[2]
The application arises from the first
respondent's finding and award on 1 April 2009. He found that the
second respondent (Lamastra,
the employee) had committed serious
misconduct by stealing darts from a Game store in George. He found
that the employee had contravened
regulation 20 (p) of the South
African Police Service discipline regulations in that, while on duty,
he conducted himself in an
improper, disgraceful and unacceptable
manner. The sanction he imposed was a fine of R500 and a suspended
dismissal for a period
not exceeding six months.
[3]
The applicants submit that the sanction is
too lenient and is unreasonable. They submit that the first
respondent (the chairperson)
ought to have imposed a sanction of
dismissal. They submit that his decision could only have been reached
by him not exercising
his discretion at all, alternatively, acting
arbitrarily and failing to apply his mind to the facts and
circumstances of the case.
They also contend that the chairperson's
decision is one which a reasonable decision-maker could not reach.
Condonation
[4]
The application was set down for hearing on
the unopposed roll for hearing today, 9 November 2010.
[5]
Four court days before the hearing, on 3
November 2010, the second respondent's attorneys filed a notice of
motion asking for the
application to be "adjourned" to the
opposed roll. The notice of motion was accompanied by an affidavit
asking for condonation
for the late filing of an answering affidavit
that was filed together with the notice of motion. On Friday, 5
November 2010, one
clear court day before the hearing, the second
respondent’s attorneys also filed heads of argument.
[6]
The answering affidavit was filed almost
one year late and the heads of argument some five months late. The
applicants’ counsel
agreed that I should treat the application
filed by the second respondent as an application for condonation. He
also agreed that
that application could be heard today; and, if I
were to grant condonation, that the matter could proceed as an
opposed application.
[7]
In
deciding on the application for condonation, I am guided by the
well-known principles set out
Melane
Santam Insurance Co Ltd
[3]
and
followed in countless decisions after that.
[8]
The extent of the delay is excessive. The
application for review was filed on 1 September 2009. After the
record had been delivered,
the applicants filed their notice in terms
of rule 7A(8) exactly one year ago, on 9 November 2009. The second
respondent had to
file his answering affidavit within 10 days after
receipt of that notice, in terms of rule 7A(9). He only did so almost
one year
later. And this court issued a directive to the parties on
12 May 2010 to file their heads of argument within 15 days, i.e. by
14 June 2010. The second respondent’s attorneys only did so
some four and a half months later, and only one clear court
day
before the hearing.
[9]
It would be useful to set out a timeline of
events. The chairperson handed down his decision on 1 April 2009. The
employee has been
on paid suspension since then, getting paid R 24
000 per month. As I pointed out, the application for review was filed
on 1 September
2009. The record of proceedings was made available on
or about 23 September 2009. On 9 November 2009, the applicants filed
their
notice in terms of rule 7A(8), together with a supplementary
founding affidavit. No answering affidavit was filed. On 12 May 2010,
this court directed the parties to file their heads of argument
within 15 days. The applicants duly did so on 14 June 2010. On
24
June 2010, in the absence of any heads of argument or answering
papers filed by the second respondent, the registrar set the
matter
down for hearing on 9 August 2010 on the unopposed roll, on notice to
both parties. Five days later, on 29 June 2010, the
second
respondent's current attorneys (Van der Merwe Du Toit Inc) came on
record. They wrote to the state attorney to say that
“writer”
had received instructions in this matter on 11 June 2010. “Writer”
did not explain why they had
taken no further steps in the period
from 11 to 29 June. Inexplicably, though the letter was dated 29 June
2010, he stated that
he would be on leave in the Western Cape from 16
to 29 June 2010; would consult with the second respondent during that
time; and
undertook to file an opposing affidavit "shortly
thereafter." On 7 July 2010, the second respondent’s
attorneys
filed a notice of intention to oppose, but no answering
affidavit. On 12 July 2010 the state attorney’s Ms Colleen
Bailey
wrote to attorneys Van der Merwe Du Toit Inc to inform them
that, since 9 August 2010 would be a public holiday, the registrar
had allocated a new date for the hearing of the matter, i.e. 9
November 2010. Ms Bailey also stated: "As you are aware, your
client is completely out of time since heads of argument was (
sic
)
filed on 14 June 2010. A copy of same is included for your attention.
We now await your client’s answering papers herein."
On 13
July 2010 the registrar sent a notice of set down to both parties,
removing the matter from the roll on 9 August 2010, and
re-enrolling
it for 9 November 2010. There was no further action from the
respondent's attorneys until 25 October 2010, when they
made some
proposals to the state attorney. On 26 October 2010, the state
attorney’s Ms Bailey again wrote to the second respondent’s
attorneys advising them that "[o]ur client is of the opinion
that the matter should proceed as set down". Ms Bailey had
also
advised the second respondent personally on a number of occasions
telephonically before he was represented by his attorneys
of record
that he ought to file his answering affidavit and heads of argument.
It is only on 2 November 2010 that the second respondent
filed his
answering affidavit. On 3 November his attorneys filed the
application for “adjournment “; and on 5
November
they filed their heads of argument.
[10]
The explanation for the delay is that the
employee placed the matter in the hands of his trade union, the South
African Police Union
(SAPU). This is after he came to the conclusion
that he could not afford the services of the attorney who represented
him at the
disciplinary hearing. It appears that the union did
nothing to oppose the application for review until it informed the
employee
in July 2010 – eight months after the applicants had
filed their notice in terms of role 7A(8) – that it would now
appoint attorneys to represent him. At that time, the union was of
the view that it was not settled law that the decision of a
functionary appointed by the SAPS was open to review and that it
would be in the public interest to oppose the matter. Shortly
thereafter, the employee’s current attorneys told him that the
law is now settled and that the relief sought is in fact competent.
For some reason, the employee says that "this caused a major
rethink within the ranks of the executive" of the union
and that
it was only during the last week of October 2010 that the union
resolved to assist him in any event.
[11]
The second respondent and his attorneys
offer no proper explanation for their inactivity in the period from
29 June 2010 –
when the attorneys came on record – to 2
November 2010. Neither does the second respondent adequately explain
his own failure
to act in the prior seven months. It is not enough to
say that he left the matter in the hands of his trade union. He was
made
aware of his obligations by the state attorney. He could either
have taken steps to file a short answering affidavit himself, perhaps
with the assistance of a colleague in the police service or in the
trade union; or, given that he was earning a not insubstantial
salary
whilst on suspension, he might have persuaded the attorney who
represented him in the disciplinary enquiry and who was already
au
fait
with the facts to spend an hour or
two to draft a short answering affidavit.
[12]
It will become apparent from my judgement
on the merits that I do not consider the second respondent to have
good prospects of success
in the main application.
[13]
Mr
Van
Eetveldt
, for the second respondent,
submitted that it is in the interests of justice that his client
should be placed in a position to
oppose the review application. He
also submitted that his client is suffering prejudice. But that
prejudice is outweighed by the
prejudice to the applicants. The South
African Police Service has been paying the employee’s salary of
R 24 000 per month
for the last seven months. It is in the public
interest that matters concerning the
fiscus
and the use of taxpayers’ money be resolved speedily. The
employee has offered no adequate explanation for the delay in
opposing the application. In these circumstances, he has not made out
a proper case for condonation.
[14]
For these reasons, I dismissed the
application for condonation. The matter therefore proceeded on an
unopposed basis. The applicants
asked for their costs in the
condonation application. I take into account that the employee has,
to a certain extent, been let
down by his trade union and his
attorneys. Although that does not entitle him to condonation, I do
take that factor into account
with regard to costs. In law and
fairness, I consider it fair that each party should pay its own costs
in the condonation application.
The merits
Administrative action
[15]
This is not an application to review and
set aside the decision of an arbitrator of the CCMA or a bargaining
council. The decision
sought to be reviewed is that of a functionary
of the South African Police Service acting in his capacity as a
chairperson of a
disciplinary enquiry. Does this constitute
administrative action?
[16]
In
Chirwa
v Transnet Ltd and others
[4]
and
Gcaba
v Minister of Safety and Security and others
[5]
,
the Constitutional Court decided that matters relating to the
employer-employee relationship, even in the public service, does
not
constitute administrative action for the purposes of PAJA. But that
is not the end of the matter. Those cases concerned, respectively,
a
dismissal and decision not to appoint an employee in the public
sector.
[6]
The case before me
concerns the review of a decision of the state as an employer as
contemplated in section 158 (1) (h) of the
LRA. That section 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 ".
[17]
Skweyiya
J stated unequivocally in
Chirwa
[7]
that her dismissal by Transnet did not constitute administrative
action under section 33 of the Constitution. In his separate but
concurring judgement, Ngcobo J explained his decision thus
[8]
:
"The subject-matter
of the power involved here is the termination of a contract of
employment for poor work performance. The
source of the power is the
employment contract between the applicant and Transnet. The nature of
the power involved here is therefore
contractual. The fact that
Transnet is a creature of statute does not detract from the fact that
in terminating the applicant’s
contract of employment, it was
exercising its contractual power.
It does not involve the
implementation of legislation which constitutes administrative
action.
The conduct of Transnet in terminating the employment
contract does not, in my view, constitute administration. It is more
concerned
with labour and employment relations. The mere fact that
Transnet is an organ of state which exercises public power does not
transform
its conduct in terminating the applicant’s employment
contract into administrative action. Section 33 is not concerned with
every act of adminstration performed by an organ of state. It follows
therefore that the conduct of Transnet did not constitute
administrative action under section 33."
[18]
Expanding on the question whether the
dismissal was administrative action under PAJA, Langa CJ stated:
"…
I conclude that the applicant’s dismissal did not constitute
the exercise of a ‘public’ power or
the performance of a
‘public’ function, and therefore was not administrative
action under PAJA. It is important to
note, however, that my
reasoning does not entail that dismissals of public employees will
never constitute ‘administrative
action’ under PAJA.
Where, for example, the person in question is dismissed in terms of a
specific legislative provision,
or
where the dismissal is likely to impact seriously and directly on the
public by virtue of the manner in which is carried out
or by virtue
of the class of public employee dismissed, the requirements of the
definition of ‘administrative action’
may be
fulfilled."
[9]
[19]
Similarly,
in
Gcaba
[10]
the court stated: "Generally, employment and labour relationship
issues could not amount to administrative action within the
meaning
of PAJA. This is recognised by the Constitution. Section 23 regulates
the employment relationship between employer and
employee and
guarantees the right to fair labour practices. The ordinary thrust of
s 33 is to deal with the relationship between
the state as
bureaucracy and citizens and guarantees the right to lawful,
reasonable and procedurally fair administrative action.
Section 33
does not regulate the relationship between the state as employer and
its workers."
[20]
The Constitutional Court has thus put it
beyond dispute in
Chirwa
and
Gcaba
that
the dismissal of a public service employee does not constitute
administrative action. Why, then, should the state as employer
be
able to review a decision by its own functionary in this case?
[21]
The distinction appears to me to lie in the
fact that, in this case, the state is acting
qua
employer; and the functionary is fulfilling his or her duties in
terms of legislation.
[22]
Section
33 (1) of the Constitution
[11]
provides that everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.
[23]
In
an attempt to define administrative action, the Constitutional Court
in
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[12]
held that:
"In section 33 the
adjective ‘administrative’ and not ‘executive’
is used to qualify ‘action’.
This suggests that the test
for determining whether conduct constitutes ‘administrative
action’ is not the question
whether the action concerned is
performed by a member of the executive arm of government. What
matters is not so much the functionary
as the function. The question
is whether the task itself is administrative or not.”
[24]
That
test may not be determinative in the light of the
dicta
of the Constitutional Court in
Chirwa
[13]
and
Gcaba
.
But the Labour Appeal Court and the Supreme Court of Appeal have
recently dealt with a matter that is essentially on all fours
with
the one before me – hence the concession by the second
respondent's attorneys that the law is now settled in this regard.
[25]
In
MEC
for Finance, KwaZulu-Natal & another v Dorkin NO &
another
[14]
the appellants sought to review and set aside a decision taken by the
first respondent, in his capacity as chairman of a disciplinary
enquiry into allegations of misconduct, to give the second respondent
(the employee) a final written warning after he (the chairman)
had
found the employee guilty of several counts of misconduct. The
appellants were aggrieved by the imposition of a final written
warning which they viewed as too lenient a sanction.
[26]
In
the celebrated case of
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[15]
the Constitutional Court held that compulsory arbitrations in terms
of the LRA are different from private arbitrations. Commissioners
exercise public power, which impacts on the parties before them. The
court concluded that a commissioner conducting a CCMA arbitration
is
performing an administrative function.
[16]
[27]
In
Dorkin
[17]
t
he
Labour Appeal Court, relying on
Sidumo,
held that, if the conduct of compulsory arbitrations relating to
dismissal disputes under the LRA constitutes administrative action,
then the conduct of disciplinary hearings in the workplace, where the
employer is the State also constitute, without any doubt,
administrative action. If it constitutes administrative action, then
it is required to be lawful, reasonable and procedurally fair.
Accordingly, if it can be shown not to be reasonable, it can be
reviewed and set aside.
[28]
The
decision of the Labour Appeal Court in
Dorkin
[18]
was
upheld by the Supreme Court of Appeal in
Ntshangase
v MEC for Finance, KwaZulu-Natal & another
[19]
.
The SCA held that the second respondent, the MEC for Education, was
an organ of state as envisaged by s 239 of the Constitution.
The
court also held that the MEC exercises public power in the public
interest in terms of legislation. When the MEC appointed
Dorkin to
preside over a disciplinary hearing, it did so in its capacity as the
State. It followed that the MEC's action qualified
as administrative
action. The MEC appointed Dorkin in terms of a collective agreement,
known as "Resolution 2". The procedure
embodied in
Resolution 2, the court held, has statutory force which is
buttressed by section 23 of the LRA. Consequently,
the powers
exercised by Dorkin in terms of Resolution 2 qualify as public power
or a public function, which has statutory authority
in terms of
section 23 of the LRA.
[20]
[29]
The effect of these decisions seems
anomalous. The dismissal of a public service employee does not
ordinarily constitute administrative
action; yet the decision of the
chairperson of a disciplinary hearing in the public service,
appointed in terms of legislation,
does. Yet I am bound by the
decisions in
Dorkin
and
Ntshangase.
[30]
Members
of the South African Police Service are appointed in terms of the
South African Police Service Act
[21]
,
read with section 212(4) of the Constitution. In terms of section 24
of the SAPS Act, the Minister may make regulations concerning
inter
alia
labour relations, including matters regarding suspension, dismissal
and grievances, the conduct of disciplinary enquiries, conduct
by
members that constitutes misconduct and the issue of the code of
conduct for the Service.
[31]
The
Minister has made regulations.
[22]
Those regulations embody a procedure negotiated and agreed upon by
the employer and all the trade unions party to the Safety and
Security Sectoral Bargaining Council. In terms of regulation 14, the
employer must appoint an employee as chairperson of a disciplinary
enquiry, save in exceptional circumstances.
[32]
The applicants
qua
the state appointed the first
respondent as chairperson of the employee's disciplinary enquiry in
this case. As in the case of
Ntshangase
,
the action of the chairperson qualifies as administrative action.
That being so, the action must be lawful, reasonable and procedurally
fair.
Is the decision
reviewable?
[33]
If it is administrative action, the
question remains whether the chairperson's decision is reviewable at
the instance of the applicants.
If so, is the decision reviewable
under PAJA or in terms of section 158 (1) (h) of the LRA?
[34]
In
Ntshangase
,
the SCA held that the decision of a chairperson appointed by the MEC
can be taken on review under section 158(1)(h). The court
tantalisingly stated that "the vexed legal question remains
whether Dorkin's decision is reviewable at the instance of the
second
respondent (the MEC) or not. If so, is it under the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), or s 158(1)(h)
of the
LRA?
[23]
[35]
The
court answered the second question in the affirmative. Referring to s
158(1)(h), the court said
[24]
:
"Undoubtedly
this section provides in explicit terms that a decision like the one
taken by Dorkin who acted qua his employer
can be reviewed on such
grounds as are permissible in law. The ground relied upon by the
second respondent for the review of Dorkin's
decision is rationality,
which is one of the recognised grounds of review. I am therefore of
the view that Dorkin's decision can
be taken on review under section
158(1)(h) of the LRA.”
[36]
Bosielo
AJA went on to say that he agreed with Zondo JP
[25]
in his judgement in the Labour Appeal Court where he stated in
paragraph 10:
"It seems to me that
if the conduct of compulsory arbitrations relating to dismissal
disputes under the [Labour Relations]
Act constitutes administrative
action, then the conduct of disciplinary hearings in the workplace
where the employer is the State
constitutes, without any doubt,
administrative action. If they constitute administrative action, then
it is required to be lawful,
reasonable and procedurally fair.
Accordingly, if it can be shown not to be reasonable, it can be
reviewed and set aside."
[37]
Unfortunately, the court did not go on to
decide whether PAJA also applied. It addressed the question whether
the employer had the
locus standi
to take the matter on review. It came to the conclusion that, as the
chairperson was a public functionary exercising a public power,
the
employer could take the chairperson's decision on review in terms of
section 158(1)(h) of the LRA. It did not, as far as I
could
establish, express a view on the applicability of PAJA.
[38]
Against that background, it is clear that
the applicants can take the decision of the first respondent (the
chairperson of the disciplinary
enquiry) on review in terms of
section 158(1)(h) of the LRA.
[39]
The test to be applied on review remains
that outlined in
Sidumo
,
i.e. whether the decision of the chairperson was so unreasonable that
no reasonable decision maker could have come to the same
conclusion.
In
Ntshangase
,
the court said in this regard:
"I agree that
Dorkin's decision, measured against the charges on which he convicted
the appellant, appears to be grossly unreasonable.
Given the yawning
chasm in the sanction imposed by Dorkin and that which a court would
have imposed, the conclusion is inescapable
that Dorkin did not apply
his mind properly or at all to the issue of an appropriate sanction.
Manifestly, Dorkin's decision is
patently unfair to the second
respondent. To my mind, it fails to pass the test of rationality or
reasonableness."
Was the chairperson’s
decision reasonable?
[40]
The applicants contend that the decision
reached by the first respondent is one which a reasonable person
could not reach. They
contend that he ought to have imposed the
sanction of dismissal.
[41]
The employee is a high-ranking officer in
the SAPS. As a member of the police service, here is obliged to carry
out the police service’s
constitutional obligation to prevent,
combat and investigate crime. His post as sector commander requires
of him to render crime
prevention and social crime prevention with in
the community.
[42]
Furthermore, the Minister has issued a code
of conduct that is binding on every SAPS member. It demands of every
police officer
to regard the truth as being of the utmost importance,
to respect and to uphold the law at all times and to avoid any
conduct which
could result in members themselves becoming violators
of the law. In terms of the code, police members commit themselves to
"…
act in a manner that is impartial, courteous, honest,
respectful, transparent and accountable… [and to] work towards
preventing
any form of corruption and to bring the perpetrators to
justice."
[43]
The actions of the employee are far removed
from these ideals. For the chairperson to have found that he is
suitable to remain in
the police force, brings to mind the Afrikaans
saying, "
om vir wolf skaapwagter te
maak".
[44]
The employee committed serious misconduct
whilst he was on duty as a police officer. On 5 November 2008 he was
on his way from George
to Oudtshoorn, ironically enough to chair a
disciplinary hearing. En route, he stopped at the Game store in York
Street in George.
He entered the store where he was observed and kept
under surveillance by the floor manager, Tanderine Moonsamy Pillay.
Pillay
followed him because one of Game’s senior security
officers had told Pillay that he had seen the employee (Lamastra) in
the
store previously. When he had gone to the spot where Lamastra had
been standing, he had found empty packages there.
[45]
On the day in question, Pillay saw Lamastra
walking to the sports department and heading straight for the darts
on the shelves.
He unpacked several darts and then walked about the
sports department with a set of darts in his hand. He then walked to
the section
in which the fishing rods are found and Pillay lost sight
of him. When Pillay saw Lamastra again, he did not have the set of
darts
in his hand. When Lamastra reached the front door of the store,
Pillay approached him and asked to speak to him in his office.
Lamastra refused to accompany Pillay, and instead attempted to leave
the store. Pillay attempted to stop him, whereupon Lamastra
tried to
flee. Two security officers assisted Pillay in preventing Lamastra
from fleeing. During the struggle to prevent him from
fleeing, a set
of darts fell out of his coat pocket. He was then escorted to one of
the offices in the store.
[46]
In the office, Pillay found a further three
sets of darts on Lamastra. One set was hidden on the left side of his
leg and two sets
were found in the back of his trousers. Whilst in
the company of Pillay and the senior security officer, Andrews,
Lamastra asked
Andrews: "Is daar nie ‘n manier hoe ons die
ding kan
uitsort
nie?”
Lamastra told Andrews that he did not want to lose his job. The only
inference that can be drawn from this interchange
is that Lamastra
was attempting to defeat the ends of justice.
[47]
The chairperson quite correctly
characterised the misconduct as serious and as containing an element
of dishonesty. Inexplicably,
though, the chairperson found that the
relationship of trust between Lamastra and his employer had not
broken down.
[48]
It
is so, as Lamastra contended at the disciplinary hearing, that he had
not stolen from his employer. Sut he is a police officer
who has a
duty of honesty and integrity, not only to his employer, but to the
general public. He committed himself to a code of
conduct in which
the principles of honesty and integrity are highlighted. It is
inconceivable that the South African Police Service
should be
expected to keep in its employ, a senior member who has committed
shoplifting.
[26]
[49]
In the disciplinary enquiry, the witness
Denise Beukes testified that it would be extremely difficult to place
a person that worked
at that level in a position of trust again. She
explained that Lamastra was part of middle management, and in a
position of authority.
Furthermore, when he was caught, he had shown
no remorse, but instead tried to “get away with it”. It
is also an important
factor that he was on duty when he committed the
misconduct.
[50]
Instead
of coming clean, Lamastra advanced a manifestly dishonest defence at
the disciplinary enquiry. It is so that he had long
service and that
the chairperson took this into account as a mitigating factor.
However, as the Labour Appeal Court pointed out
in
De
Beers Consolidated Mines Ltd v CCMA
[27]
,
long service is not necessarily a guarantee against dismissal. As
Conradie JA said
[28]
, "the
risk factor is paramount. If, despite the prima facie impression of
reliability arising from long service, it appears
that in all the
circumstances, particularly the required degree of trust and
employee’s lack of commitment to reform, continued
employment
of the offender will be operationally too risky, he will be
dismissed." He also noted that long service does not
lessen the
gravity of the misconduct or serve to avoid the appropriate sanction
for it. "A senior employee cannot, without
fear of dismissal,
steal more than a junior employee.”
[51]
The
LAC in
De
Beers
also considered the question of remorse. Conradie JA again
[29]
:
"It
would in my view be difficult for an employer to re-employ an
employee who has shown no remorse. Acknowledgement of wrongdoing
is
the first step towards rehabilitation. In the absence of a
recommitment to the employer's workplace values, an employee cannot
hope to re-establish the trust which he himself is broken. Where, as
in this case, an employee, over and above having committed
an act of
dishonesty, falsely denies having done so, an employer would,
particularly where a high degree of trust is deposed in
an employee,
be legitimately entitled to say to itself that the risk of continuing
to employ the offender is unacceptably great."
[30]
[52]
Lamastra showed no remorse, either when he
was caught or during the disciplinary hearing. In these
circumstances, it cannot
be expected of the South African
Police Service to keep him in its employ.
[53]
Given this set of facts, the lenient
sanction imposed by the chairperson is so unreasonable that no
reasonable decision maker could
have come to the same conclusion. I
am persuaded that the decision on sanction should be reviewed and set
aside.
Remit or substitute?
[54]
It
is trite that the court on review will generally refer a matter back
to the administrative functionary for reconsideration, rather
than
substitute its own decision for that of the functionary.
[31]
But that is not an inflexible rule. For example, in
Gauteng
Gambling Board v Silverstar Development Ltd and others
[32]
and cases there cited it was held that, in essence, it is a question
of fairness to both sides.
[33]
[55]
In the present case, I have a full record
of the evidence given at the disciplinary enquiry before me. Nothing
would be gained by
remitting the matter for a re-hearing. Lamastra
has been on paid suspension for seven months. A further delay will
only entail
further unnecessary expenditure by the applicants.
[56]
The applicants submitted that I should
substitute the finding of the chairperson with a sanction dismissing
the second respondent
from the first respondent’s employ with
effect from the date of the first respondent’s award imposing
the sanction.
I am not in a position to decide whether the applicants
will or should attempt to recover the salary they have paid to the
second
respondent since that date. Therefore, I do not express a view
on that aspect. I am satisfied, though, that the applicants have
made
out a case for the relief sought.
Costs
[57]
In the light of my earlier ruling on
condonation, the review application was heard on an unopposed basis.
No costs order is warranted
in the main application. I have already
stated my views with regard to costs in the condonation application
in paragraph [14] above.
Order
[58]
I make an order in the following terms:
58.1
The second respondent's application for
condonation for the late filing of his answering affidavit and heads
of argument is dismissed.
58.2
The first respondent's award dated 1 April
2009 is reviewed and set aside in terms of section 158(1)(h) of the
Labour Relations
Act.
58.3
The award on sanction is substituted with
the following award: "The second respondent (i.e.
the employee, Gordon
Robert Lamastra) is dismissed with effect from 1
April 2009".
58.4
There is no order as to costs.
_______________________
STEENKAMP
J
Date
of hearing:
9 November 2010
Date
of judgment:
19
November 2010
For
the applicants:
Adv
E A de Villiers - Jansen
Instructed
by:
The State Attorney
For
the respondent:
Attorney
C van Eetveldt
Instructed
by:
Van der Merwe Du Toit Inc
[1]
Act
66 Of 1995
[2]
Act
3 of 2000
[3]
1962
(4) SA 531
(A) at 532
[4]
2006
(4) SA 367 (CC)
[5]
(2010)
31
ILJ
296
(CC)
[6]
There
is no need to deal with
Fredericks
& others v MEC for Education & Training, Eastern Cape
[2001] ZACC 6
;
2002
(2) SA 693
(CC) and similar cases preceding it, as the conflicting
decisions leading up to the decision of the Constitutional Court in
Gcaba
have
now been settled by that decision.
[7]
supra,
at para [73]
[8]
Para
[142]
[9]
para
[194] (my underlining)
[10]
Supra
para
[64]
[11]
Constitution
of the Republic of South Africa, 1996
[12]
2000
(1) SA 1
(CC) at para [141] (my emphasis)
[13]
Chirwa
v Transnet & others
2008 (4) SA 367 (CC)
[14]
[2008]
6 BLLR 540 (LAC)
[15]
2008
(2) SA 24 (CC)
[16]
at
paragraph [88]
[17]
supra
[18]
supra
[19]
2010
(3) SA 210 (SCA)
[20]
Ntshangase
paras
[13] and [14]
[21]
Act
68 of 1995
[22]
Regulations
for the South African Police Service, issued under section 24 (1) of
the Act in Agreement 1/ 2006.
[23]
Para
[14] at 207 J
[24]
At
para [15] 208 B-C
[25]
(as
he then was)
[26]
Lamastra
has not been criminally convicted of shoplifting. I use the term,
not in its criminal law sense, but in the context of
a disciplinary
enquiry.
[27]
(2000)
21
ILJ
1051 (LAC)
[28]
At
1059 B-C para [24]
[29]
At
1059 D-E para [25]
[30]
at
para [25]
[31]
See,
inter
alia, Ntshangase (supra)
at
para [20].
[32]
2005
(4) SA 67
(SCA) para [40]
[33]
See
Commissioner,
Competition Commission v General Council of the Bar of South Africa
2002 (6) SA 606
(SCA);
Johannesburg
City Council v Administrator, Transvaal and ano
1969
(2) SA 72
(T) 76 D-E;
Ntshangase
(supra)
para
[22].