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2011
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[2011] ZALCJHB 229
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POPCRU obo Teffo v Minister of Safety and Security and Others (J1435/11) [2011] ZALCJHB 229 (4 August 2011)
VAN NIEKERK J
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Not
Reportable
CASE NO:
J1435/11
In the matter between
POPCRU obo TEFFO, MD
.................................................................................
Applicant
and
MINISTER
OF SAFETY AND SECURITY
.............................................
First Respondent
NATIONAL
COMMISSIONER OF THE SAPS
.................................
Second Respondent
LT COL DJ
SMIT
..................................................................................
Third
Respondent
Date of
hearing: 3 August 2011
Date of
Judgment: 4 August 2011
_____________________________________________________________
JUDGMENT
_____________________________________________________________
VAN NIEKERK, J:
[1] This is an urgent application brought yesterday in terms of which
the applicant seeks an order reviewing and setting aside
a decision
made on 21 July 2011 to suspend Mr MD Teffo. On his behalf, the
applicant acts with effect from 21 July 2011 without
remuneration.
[2] The employee on whose behalf the applicant acts is a warrant
officer in the South African Police Service. He is also a shop
steward of the applicant, the Police and Prison Civil Rights Union.
The dispute between the parties relates to a notice of suspension
issued by the third respondent, a Lieutenant Colonel Smit, on 21
July, in terms of which Warrant Officer Teffo was suspended with
effect from the same date.
[3] The brief history of the matter is that disciplinary charges were
brought against Warrant Officer Teffo. He was initially suspended
on
8 November 2010 prior to a disciplinary hearing to be convened
in due course. For reasons that are not apparent from the
papers, the
disciplinary hearing was postponed to 24 January 2011, tpo 7 February
2011, to 1 April 2011, to 13 April 2011 and then
to 26 May 2011 and
then again to 21 July 2011.
[4] On 14 July 2011, Warrant Officer Teffo's union representative
addressed a letter to the Provincial Commissioner of the South
African Police Service. The letter requested a postponement of the
disciplinary hearing scheduled to commence on 21 July 2011,
proffering as his reasons the fact that Warrant Officer Teffo would
be on official annual leave from 18 July to 4 August 2011 and
further
that his representative was required to attend another arbitration
matter at the Department of Correctional Services on
22 July 2011.
Further dates in August and September were then proposed for the
disciplinary inquiry to continue.
[5] The chairperson of the inquiry refused to postpone the hearing
and 15 July 2011 advised Teffo of that fact and that he was
expected
to be in attendance on 21 July. On 21 July, nether Teffo nor his
representative appeared at the hearing. The chairperson
then iinvoked
regulation 18 (5) and had issued a letter on 21 July 2011 to Warrant
Officer Teffo advising him that in terms of
Regulation 18(5) (a) (i),
he was deemed to have been suspended from the service of the SAPS
without remuneration with immediate
effect. The letter continues and
I quote:
"This suspension is as a
result of the employee's failure to appear at the departmental
hearing on 21 July 2011, to answer
to charges as stated in the notice
of the hearing that had been remanded and the employee warned by the
chairperson at the hearing
on 26 May 2011 to appear before him on the
adjournment date, nam
ely on 21 July 2011."
[6] The basis of the applicant's argument in these proceedings is
that on a proper interpretation of Regulation 18, if an employee
fails to appear on a date scheduled for a disciplinary hearing, the
chairperson must postpone the hearing for a period of not less
than
seven calendar days in terms of Regulation 18(3); that the notice of
postponement must be served on the employee and must
be in the form
determined by the National Commissioner and must comply further with
Regulation 12(3); that on the fixed date to
which the hearing has
been postponed in terms of Regulation 18(3), the chairperson is
required to enquire into the reasons for
absence of an employee; that
if an employee fails to appear at the hearing on the fixed date the
chairperson must postpone the
hearing indefinitely in terms of
Regulation 18(5)(a)(ii) and having done so, the chairperson is
required to exercise a discretion
in terms of Regulation 18(5)(d),
whether or not to suspend the employee or postpone the hearing to a
later date.
[7] In particular, the applicant contends that the notice of
suspension should be reviewed and set aside on the basis that the
chairperson of the hearing failed to issue a notice of postponement,
that he failed to consider the fact that Warrant Officer Teffo
had a
right to be heard before being suspended and that he exceeded his
authority by issuing the notice of suspension without compliance
with
the provisions, particularly of Regulation 18(3).
[8] The respondents contend that the effect of Regulation 18 is to
provide for what might amount to an automatic suspension in
circumstances where a disciplinary hearing has commenced and where
proceedings have been postponed to a later date in the presence
of
the employee concerned. In other words, the provisions of Regulation
18(3) which require a postponement of the hearing on 7
days' notice
and service of notice of the postponement on the employee, apply only
in circumstances where the disciplinary inquiry
is first convened (or
reconvened by agreement between the parties) and where the employee
fails to appear at that hearing. In other
words, subregulation (3)
applies only where there is a failure to appear or remain in
attendance at a hearing convened or rescheduled
in term sof
subregulation (2).
[9] At issue is the interpretation of regulation 18(5) (a) and the
pertinent part of the regulation reads as follows:
"(5)(a) In the event that
the employee fails to appear at the disciplinary hearing on any
date to which the hearing has been postponed
(my emphasis)or a
date to which it was postponed in terms of subregulation 3-
(i) the employee shall, from the
date of such failure to appear or remain in attendance, be deemed to
be suspended without remuneration;
and
(ii) the chairperson must
postpone the disciplinary hearing indefinitely and the disciplinary
hearing shall only be reconvened at
the instance of the employee
concerned, after liaising with the employer representative, as
contemplated by subregulation 1(b)...."
[10] It bears mentioning at this stage that subregulation 5(c)
provides that notwithstanding the provisions of paragraphs (a) and
(b), the chairperson may on good cause shown and at any time set
aside the suspension effected in terms of subregulation 5(a)(i).
Further, in terms of paragraph (d), the chairperson may,
notwithstanding the provisions of paragraphs (a) and (b), decide that
the employee should not be suspended and postpone the hearing to a
later date.
[11] It seems to me that the provisions of regulation 18(5) (a)
contemplate two different circumstances. The first is a failure
to
appear at a disciplinary hearing on a date to which the hearing has
initially been scheduled. or rescheduled in terms of subregulation
18(2). The second circumstance that in which a hearing is postponed
to a particular date in terms of subregulation (3) and a notice
of
postponement is issued and served on the employee.
[12] It is clear to me that the introductory portion of regulation
18(5) (a) clearly envisages circumstances, such as the present,
in
which an employee may be automatically suspended without the employer
invoking the provisions of regulation 18(3). These circumstances
are
a failure to appear at a disciplinary hearing on any date
to which
the hearing has been postponed.
[13] In the present instance, it is common cause that when the matter
was postponed on 26 May 2011 the disciplinary hearing was
postponed
in Teffo’s presence, to 21 July. In terms of regulation
18(5)(a) it seems to me that for the purpose of that regulation,
this
is “
a date to which the disciplinary hearing has been
postponed
”, and not a failure by Teffo to attend a
disciplinary hearing on the date on which it had been scheduled in
terms of subregulation
(2).
[14] I might mention that there is support for this interpretation of
regulation 18(5) in an unreported judgment handed down by
Lagrange J
under case number J291/11.
1
That judgment was handed down on 24 February this year and as I have
indicated, deals with precisely the point regarding the
interpretation
and application of Regulation 18 that arises in the
present circumstances. Lagrange J concluded that the requirements of
postponement
and notice contained in subregulation (3)(a) did not
apply when a disciplinary hearing was postponed to a later date in
the presence
of the employee concerned; it applies only in the case
of a failure to appear on a date on which a hearing is scheduled. It
follows
then that the suspension of Warrant Officer Teffo, on account
of his failure to appear at the disciplinary inquiry on 21 July was
automatic in terms of regulation 18(5) (a) and that the applicant has
therefore failed to establish a clear right for the purposes
of the
present application.
[15] Further, it is clear to me that there is an alternative remedy
available to an aggrieved employee in circumstances such as
the
present. As I have already indicated in terms of regulation 18(5) (c)
the chairperson of an inquiry is empowered on good cause
shown at any
time to set aside a suspension and in terms of sub-paragraph (d) to
decide that the hearing should be postponed to
a later date.
[16] There is nothing in the papers to suggest that the applicant in
the present matter exercised any right to seek to have the
suspension
set aside on the basis that good cause was shown for his failure to
appear. In short, having failed to establish a clear
right to the
final relief that the applicant seeks and in view of the fact that
alternative rights of recourse and remedies exist,
none of which
appear to have been invoked, the application stands to be dismissed.
[17] I wish to add a note of concern. The purpose of the regulations
is clearly to ensure that disciplinary proceedings are expeditiously
conducted. In the present case, the proceedings were first initiated
as far back as November last year. At this point, some 9 months
later, no progress whatever has been made in determining the
substance, if any, of the charges brought against Warrant Officer
Teffo.
[18] The purpose of the Labour Relations Act
2
and in particular the Code of Practice on Dismissal is to ensure that
matters such as the present are expeditiously dealt with
at the
lowest possible level. Instead, the parties have resorted to
litigation in circumstances where they ought properly to have
sought
the resolution of this matter at the level of the shop floor, or, in
this case, the police station. In my view, the disciplinary
inquiry
should proceed at the soonest possible date and this matter ought to
be brought to the soonest possible resolution.
[19] Since the judgment by Lagrange J was not reported and since none
of the parties to the present litigation were parties to
that
application, it would be unfair for me to make a punitive order as to
costs in relation to these proceedings. Having said
that, there is no
reason why the respondents should be deprived of their costs incurred
in having to defend this matter. So for
those reasons I make the
following order.
The application is dismissed, with costs.
_____________________
Van Niekerk J
Appearances:
For the applicant: Adv J Basson, instructed by Grosskopf Attorneys
For the respondents: Adv MJ Ramaepadi, instructed by the State
Attorney
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