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[2011] ZALCJHB 270
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Sekwati v Masiye and Others (J291/2011) [2011] ZALCJHB 270 (27 September 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO J291/2011
Lieutenant
colonel
D.
S.
Sekwati Applicant
and
BRIGADIER
N. P. MASIYE,
STATION
COMMANDER, S A POLICE SERVICE,
BRAKPAN1st Respondent
LIEUTENANT
GENERAL
M.
PETROS, PROVINCIAL COMMISSIONER, GAUTENG 2nd
Respondent
COLONEL
P. VAN DER MERWE,
PRESIDING
OFFICER 3rd
Respondent
JUDGMENT
ON LEAVE TO APPEAL
LAGRANGE,
J
[1]
On
24 February 2011, I dismissed the applicant’s urgent
application to set aside his suspension without pay on January 2011.
I found that the application was only brought six weeks after the
suspension was implemented and as such lacked the necessary urgency
to justify being considered as an urgent application. As such, the
matter could simply have been struck off the role for lack of
urgency
alone. Nonetheless, the merits of the applicant's claim were also
considered and found to be wanting. I concluded that
the applicant
had failed to demonstrate a clear right to remain on paid suspension,
and that the employer was entitled to rely
on the provisions of sub
regulation 18 (5) (a) of the South African Police Service Discipline
Regulations.
[2]
The
applicant now appeals against the decision. The first ground of
appeal is that the court erred in finding that the applicant
did not
address the issue of the six-week delay before he brought the urgent
application. The applicant refers to a memorandum
which was attached
to his founding affidavit. That memorandum was undated and on closer
inspection appears to have been the applicant's
submissions to the
original notice of suspension which he received on 15 December 2010.
Once again, the applicant blames the SA
PS for delaying his matter
until the outcome of criminal charges against him and his wife. I'm
satisfied that the applicant has
provided no basis for reconsidering
whether the six-week delay in launching his application was a
justifiable delay.
[3]
In
relation to the merits of his application, the applicant reiterates
his claim that his non-attendance at the enquiry scheduled
for 21
December 2010 should merely have resulted in the matter being
postponed by the presiding officer for seven days following
which a
charge of misconduct could then have been late which might have
resulted in suspension. The applicant believes that the
SAPS did not
adhere to this regulation and that the court erred in not finding
that it ought to have complied with that stipulation.
The provisions
the applicant is referring to in this regard are sub regulations 18
(2), (3) and (4) of the above-mentioned regulations.
Those
regulations provide that if an employee fails to attend a hearing the
chairperson must postpone the hearing for not less
than seven days
and on reconvening the hearing may enquire into whether or not the
employee’s non-attendance at the previous
hearing amounted to
misconduct. It is clear that a finding of misconduct may only be made
in terms of those provisions if the seven-day
postponement on notice
was given. The applicant insists that because these provisions were
not applied to him, the employer was
not entitled to suspend him
without pay. If these were the only provisions applying to the
postponement of a hearing, the applicant's
submissions might have had
some merit.
[4]
However,
sub-regulation 18 (5) (a) clearly envisages that a postponement may
either take place in terms of sub-regulation 18(3)
or may have been
postponed on some other basis. The postponement of the enquiry to 7
January 2011 was granted at the request of
the applicant. There is
nothing on the face of the wording of sub regulation 18 (5) (a) to
suggest that the date to which it was
postponed does not fall within
the ordinary meaning of the phrase “...on any date to which the
disciplinary hearing has been
postponed,..” in that provision.
[5]
I
am satisfied that, in essence the application for leave to appeal, in
the main, has simply reiterated the arguments placed before
me when
the urgent application was heard and has not provided me with any
basis for believing that another court may come to a
different
conclusion on these issues.
[6]
In
the applicant's submissions filed in July 2011 he advances new
submissions that his suspension without pay was an unfair labour
practice. This submission was not made at the time the matter was
argued, nor was it part of the applicant's claim made out in
his
notice of motion and founding affidavit. On what was before the court
when this application was heard there was no basis laid
for making a
finding of this nature nor was such a relief sought. In the
circumstances, there was no basis on which any court might
have made
a finding of this nature.
[7]
In
conclusion, I am satisfied that it is unlikely that another court
might come to a different conclusion on the evidence that was
placed
before me and accordingly the application for leave to appeal is
dismissed with costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of judgment: 27 September 2011
(In
chambers)